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Wills- be careful about cutting children out

Parents often worry that a child with a drug addiction will squander any money gifted to them preferring to leave the child out of their Will or to reduce the amount the child receives.  This may lead to the child making a family provision claim causing expense and emotional trauma to those who inherit the estate (or most of it).

In a recent family provision claim (Kouroutis v Kouroutis [2023] NSWSC 608) Judge Slattery tried to do the best he could for a daughter who suffered from ill-health and a lack of financial stability and who had been through heroin addiction.  The father Will-maker had left this daughter $100,000 but had left the bulk of his estate to his son who he felt was more deserving.  Judge Slattery realised there was not enough money in the estate to make each child comfortable. 

The Judge has power to alter the terms of the Will.

The Judge awarded a further $118,000 to the daughter by reducing gifts to great and grand/children and left the son’s entitlement intact.

He determined the daughter’s history made it likely she could squander the money.  He directed that the funds be held on trust for her (ie looked after for her by another adult).  He also noted that due to a particular legal rule (Saunders v Vautier) the Will needed careful wording to avoid the daughter being able to call for an end to the trust.

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