How do you know your Mum or Dad haven’t cut you out of their Will?

A recent case shows why and how you can be disinherited.

The discretion exercised by Supreme Court judges in the recent case of Burke v Burke, has set a precedent that shows just how much power Testators (makers of wills) have to disinherit their children for being ungrateful or estranged.

In Burke v Burke, the Supreme Court of NSW dismissed an estranged and disinherited son’s application for a family provision to overturn the disinheritance provisions in his parent’s will.

The lesson from this case is that if Testators and Testatrix’s specify in their will exactly why they wish to exclude someone, and give a full account of the facts leading up to their estrangement or disagreement with their child, then they are on very strong ground. They are on even stronger ground if they can cite evidence from witnesses supporting their reasoning.

In this case, the testator described how her son had not contacted her for 19 years after an incident between them. She claimed he only enquired as to her condition when found out she was in a nursing home. He was in financial difficulties and knew of his mother’s substantial 1.2 million dollar estate. All of this was confirmed by witnesses.

Further strengthening the case against her son, she left an amount to his child bypassing him. She explained in her Will she didn’t want her grandson to miss out because of the actions of his father.

The Testator’s story is what matters and the more specific the justification for disinheritance, the better. So, the lesson to kids is to be good to your parents and family during their lives.

Drafting wills for Testators is what we do in our Estate Planning Division. We also challenge wills by litigation where children have been left our unreasonable so.

If you would like to receive other useful legal insights on estate planning, conveyancing or business advice please sign up to our newsletter. Alternatively, you can always call us if you have a pressing issue or question. 

• Written by Mira Davies, Administration – Estates Paralegal at Wilson Haynes
• Edited by Jim Wilson, Solicitor/Director and Principal Wilson Haynes
• Burke v Burke [2015] NSWCA 195 https://www.caselaw.nsw.gov.au/decision/559f1b41e4b0f1d031dea869

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