Often when drawing wills, lawyers are faced with instructions where the will maker does not want to give a direct gift to their child for various reasons.  In some cases, it might be that they are estranged from the child, or that they have had a very bad history with the child, or that the child is under the influence of a particular religion, or that they are bad with money, or have a drug habit, or that the will maker is concerned that there will be a marital issue and that the spouse will take half of the gift. 

In some of these situations, the will maker might decide that they would like to leave the gift to their grandchildren instead of the child, thinking that this is a way in which the child’s family will benefit from the making of the gift. 

But the will maker should give consideration to estate claims which arise. A will maker generally has a moral obligation to consider the needs of their children when determining the distribution of their estate.  They have no such obligation in the case of their grandchildren, unless the grandchildren are dependant on them.  So when it comes to people who might make a claim against the estate for further provision (see here https://www.qbmlawyers.com.au/estate-lawyers-gold-coast/challenging-a-will/), the grandchildren do not have a right unless they are dependent, whereas the child will always have that right.

The effect of this is that if a child then makes a claim for further provision from the estate, having received nothing, then the estate can have an obligation to pay the child as a result of a successful family provision claim, in addition to the obligation under the Will to pay the grandchildren – ie the beneficiary sought to be excluded will potentially recover twice through a court ordered gifted to them, and the benefit that they have through their children being provided money under the estate as well. 

For this reason, will makers should appreciate the risks of excluding their children from gifts, even if they leave a gift to their grandchildren to substitute for it.  While in some cases, a court might vary the will to deprive the grandchildren of the benefit of a gift so as to allocate it to the applicant child, this would not be a certain outcome, and furthermore, by the time that a court came to make determinations of this nature, it is likely that the estate will have suffered costs burdens well exceeding $100,000. Also there is the disastrous emotional impact of it all, essentially pitting family members against each other.

For advice in relation to estate planning and claims against estates, contact our lawyers Peter Muller at peterm@qbmlaw.com.au and Jessica Murray at jessicam@qbmlaw.com.au