Mr Chen has three children. His youngest son cut off contact with the family twenty years ago, and Mr Chen wants to leave his Melbourne home only to the two children who have looked after him for years. He asks: 'It's my will. Can I leave my youngest son nothing at all?'
The direct answer: you can write your will that way, and it will not be invalid because of it. But in Victoria, a child who is left out can make a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic), asking the court to order proper maintenance and support from the estate. Whether the court agrees depends on the circumstances.
At a glance
- Children, including stepchildren, are among the 'eligible persons' who can make a claim.
- The court's central questions are whether the deceased had a moral duty to provide for the applicant and whether the will made adequate provision.
- A claim generally must be made within six months after the grant of probate or letters of administration.
- Recording your reasons and keeping evidence is more useful than simply writing 'nothing' in the will.
- Victoria currently has no 'notional estate' regime like New South Wales, but that does not mean assets can be freely moved out of the estate.
先了解申索的基本规则
哪些子女可以提出申索, 法院如何判断“道德责任”以及六个月的期限, 请参阅《在维多利亚州, 谁可以挑战遗嘱?期限是多久?》. 本文着重讨论立遗嘱时可以采取的安排.
常见的安排方式
- 生前赠与并留下记录: 如果某个子女早已获得买房款或大额资助, 应保存转账记录, 并在遗嘱或说明中提及, 法院会考虑这些生前利益.
- 以终身权益或居住权代替直接给予: 让某位家人在生前使用物业或收取收益, 最终再留给其他子女.
- 设立遗嘱信托: 由受托人按需要为某个子女支付生活或教育费用, 而不是一次性给予大笔财产, 适合担心子女理财能力或婚姻风险的情况.
- 以人寿保险平衡分配: 例如把家族生意留给参与经营的子女, 再以保险赔付照顾其他子女.
- 事先沟通: 在家庭会议或由中立调解员协助的场合说明安排, 往往比让子女在遗嘱宣读时才知道更能减少争议.
每一种安排都有利弊, 也要配合退休金提名和物业持有方式整体考虑.
Reducing the risk when making your will
- Record your reasons: attach a separate signed and dated statement that objectively records why you are leaving little or nothing, avoiding emotional or inaccurate accusations.
- Keep evidence: for example, records of money given to the child for a home, school fees or loans.
- Consider a modest gift: sometimes leaving a reasonable amount reduces the incentive to litigate more than leaving nothing.
- Plan assets as a whole: jointly owned property, superannuation and life insurance usually pass outside the will, but planning must stay lawful and consider the effect on other family members.
- Confirm capacity: older will-makers or those with health issues may consider having a doctor assess their capacity and keep a record.
- Review regularly: check the will again after family changes such as reconciliation, remarriage or the birth of grandchildren.
What should cross-border families watch for?
Many Chinese families have children spread across China, Hong Kong, Malaysia or Singapore. As long as the estate includes property in Victoria (especially real estate), a child overseas may also bring a claim in Victoria. In addition, places have different rules about children's mandatory shares, and a separate will made overseas may face local forced heirship or reserved-share rules, so each jurisdiction needs to be considered.
FAQs
If I write 'I deliberately leave nothing to X' in my will, will that stop a claim?
It will not stop it entirely. It shows the omission was not an oversight, but the court will still examine whether a moral duty existed. Clear, objective reasons and evidence are more helpful.
Can an adult child who is financially independent still claim?
They can apply, but the court will look closely at their financial position and needs. An adult child in a strong financial position generally has a lower chance of receiving additional provision.
Can a child living in China claim in Victoria?
Yes. Where the applicant lives does not affect eligibility; what matters is whether they are an eligible person and whether the estate falls within the Victorian court's jurisdiction.
Is it safe to put the house into joint names with one child?
Property held as joint tenants usually passes directly to the surviving owner and is not part of the estate. But this immediately affects ownership, stamp duty and other taxes, and may cause other disputes, so get professional advice first.
Is there any chance if the six-month deadline is missed?
You can ask the court for an extension, but the court will consider the reasons for delay, the effect on beneficiaries and whether the estate has already been distributed. The earlier you get advice, the better.
Chua Tan Associates has practised in Melbourne since 1990, providing wills, powers of attorney, probate and estate administration services in Mandarin, Cantonese and English. Justin Chua is a STEP Affiliate and a nationally accredited mediator, and the firm has a notary public who can notarise documents for use overseas. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page provides general information only and is not legal advice.
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