Here's a classic one you've all probably heard at some stage in your life, if not experienced it for yourself.
Mum and Dad die and leave a will for their children, but a dispute arises because a disgruntled sibling feels that they did not get their "fair share". The matterdrags on for years and relationships that were once loving, have turned sour.
As parents, you are probably wondering, how much should we leave our children? How much is enough? Can we exclude one on account of their successes?
Issues relating to wills and wishes are age old, and have been pursued through the courts on countless occasions. Here, we hope to shed some light on some more common concerns that arise, for those making wills and for family members.
The Family Protection Act 1955 ("the Act") is one of three Acts under which a claim can be made against the estate of a deceased. As the name suggests, it is specific to claims made by members of the deceased's family. For the purpose of this article, we focus specifically on the application of section 4 of the Act to siblings.
Section 4 of the Act places a moral duty on the will maker to ensure adequate provision for proper maintenance and support has been made for his/her children.
Note that other family members are entitled to make a claim, but other factors must be assessed such as the nature of the relationship with the deceased. For children of the deceased, it is not necessary to show this as the relationship between parent and child is inherently close.
Three Court of Appeal cases build on one another to provide a meaning for the words "proper maintenance and support".
The first case involved two sisters who were left a portion of their mother's estate. The first sister, who was financially well off, was only left 5 per cent of her mother's estate while the second sister, who was struggling financially, got the remaining lion's share.
The first sister made a claim under section 4 of the Act and was successful, the court finding that the provision made by the mother was too small to amount to proper support for a family member.
The second case concerned an only child who was not directly given much from her wealthy father's estate. Instead, a small portion went to paying off the mortgage of her home while another portion was put in a trust to be used for her children's education. Most of the estate was given to charity.
The daughter argued that she should be entitled to more as an only child, but the court disagreed, saying that her father demonstrated wise and just judgment in ensuring proper maintenance and support was made.
The final case related to two sons who were both given a share in their mother's estate. The first son was on the sickness benefit and had a dependant.
He was given a quarter of the estate, while the second son who was a wealthy pharmacist with no children, was given the remainder. The court found that a value judgment had been made and it would not intervene so long as necessary provision was made to satisfy proper maintenance and support.
The takeaway from these three cases is that how much you leave to your children is ultimately your decision, you do not need to provide for them equally, but you should leave each of them at least something.
The amount of your estate that you leave to them should reflect your relationship with them and ensure that enough is left for their proper maintenance and support.
Proper maintenance and support may depend on (1) the size of the estate, (2) the judgment exercised by the will maker and (3) an overall assessment of the moral duty being fulfilled. This list is not an exhaustive one and the courts deal with section 4 claims on a case by case basis.
There are a few valid reasons for excluding children from your will such as being deliberately malicious towards you, committing a serious crime against you, or neglecting you over a period of time.
Three Court of Appeal cases build on one another to provide a meaning for the words "proper maintenance and support". Photo / File
However, only in the most extreme of cases do the courts find that a parent need not provide for their child. At the end of the day, you must keep in mind that the law imposes a moral duty on you to ensure that your children are provided for after your death.
Human nature being what it is, you may not be able to prevent family disputes from arising as a result of your wishes following your death.
But you can certainly minimise the likelihood of costly family fall outs by giving careful thought to the extent to which you provide for each of your children in your will.
