Do I have to include my children equally in my Will?

A Will is a legally binding guide of how your assets will be distributed following your passing. It’s a common misconception, however, that the Will-maker has no real responsibilities other than assigning assets with their own discretion. That couldn’t be further from the truth.

As a Will-maker, you have a moral obligation to multiple parties following your passing to ensure their ongoing safety and wellbeing. This includes your spouse or de facto partner, children (even if they are adults), and any other dependants.

Parents sometimes, for whatever reason, have differing levels of relationships and involvement with each of their children, leaving many wondering if their assets must be divided equally between all children, or if one child needs to be included at all.

Generally speaking, all children from current and previous relationships should be included equally in your Will. If you choose not to, the excluded person/s may have the ability to contest or challenge it. Should the Court decide this person is entitled to a share of your inheritance, the costs of the claim may be paid from your estate, thus lowering its value for all beneficiaries.

Of course there are occasions where it may make sense from your perspective to exclude or disvalue a child, such as an estranged relationship. However, it is ultimately up to the Court’s discretion to determine if this party has been unfairly left out of your Will. In doing so, they will consider many aspects, such as a child’s attempt at reconciliation and the reasons for the lack of contact over time.

If you are adamant to exclude a child from your Will, it is not enough to merely leave out their name. The Court may assume you have accidentally forgotten them and reallocate your estate with their inclusion.  In this circumstance, it is recommended that you prepare a letter to your Executor detailing the reasons as to why this particular person has been left out. But again, if a claim is made against the Will, the decision is left in the hands of the Court.

The most important element to remember is that the passing of a parent is a sad and stressful experience for your children, so leaving an equal inheritance can help avoid additional emotional and financial strain for all parties involved.

At Waters Lawyers, we have mastered the skill of creating Wills through decades of experience. We are well-versed in your rights and the rights of your potential beneficiaries, however we also understand that thinking about your own passing can be an emotional and difficult time. We pride ourselves on our patience, empathy and efficiency to ensure the Will is created properly but without taking up too much of your time. To find out more about our approach to Wills, our prices, or to book an appointment, please visit our Make A Will page.
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