When it comes to writing their wills many parents face the dilemma of whether to distribute their assets equally among their children. This decision is deeply personal and often influenced by various factors such as family dynamics, financial needs, and individual relationships.
The principle of testamentary freedom allows individuals to distribute their estate according to their wishes. This means you are not legally obliged to provide equal shares to all your children. However, the law also provides mechanisms such as Family Provision Claims to protect the rights of dependents who may have been inadequately provided for in a will.
For instance, in New South Wales, the Succession Act 2006 allows children (both biological and adopted) to make a Family Provision Claim if they believe they have not been provided for adequately under a parent’s Will.
The court considers various factors when deciding on such claims, including:
- The financial needs and resources of the claimant,
- The size and nature of the estate,
- The relationship between the claimant and the deceased,
- Any promises or commitments made by the deceased.
While you are not legally required to provide equal provision to all your children, it’s important to carefully consider the implications of your decisions:
- Fairness vs. Adequate Provision Fairness is not a factor which the Court will consider. You might feel that one child needs more support due to financial hardship, health issues, or because they provided you with more care. These factors can justify unequal distributions.
- Communication with Beneficiaries: Open and honest communication with your children about your decisions can help manage expectations and reduce the risk of disputes. Explain your reasoning and ensure your decisions are understood.
- Detailed Will and Accompanying Letters of Wishes: An explicit will, possibly accompanied by a Letter of Wishes, can provide clarity and context for your decisions. While a Letter of Wishes is not legally binding, it can guide the executors and the court in understanding your intentions.
- Seek Professional Advice from August and Claire Lawyers: Consulting with August and Claire Lawyers’ experienced team can help to navigate the complexities of inheritance laws and ensure your will is legally binding and reflects your wishes.
Deciding whether to provide equal provision to all your children in your will is a complex and personal decision. By carefully planning, communicating with your family, and seeking professional advice, you can ensure your wishes are respected and minimise the risk of disputes amongst your loved ones.