“Am I Going to Hell?”

"Am I going to hell?"

We’ve all asked ourselves this question before, whether it be when telling a white lie, when making a promise with our fingers crossed or in some situations, when asking our parents to change their Wills to give us more.  The latter is less common but applies to a caller on the Kyle and Jackie O Show recently, in the segment “Am I Going to Hell?” 

The caller, let’s call him Sam, described the sad scenario of his ill parent.  In Sam’s view, he had helped his mother in her dying months and his siblings had been nowhere in sight.  So, he suggested to his dying mother that she update her will to recognise his effort, to the exclusion of his siblings.  His mother agreed and updated her will, leaving Sam a lot and his siblings not much at all.  Sam’s mum has now died and his siblings are, unsurprisingly, challenging the will.  So, the question remains, “is Sam going to Hell?”  It’ll probably depend on what side of the sibling fence you are on as to how you answer that question.

Whilst I cannot answer whether Sam is going to Hell, I can answer how the Court looks at whether parents should leave their estates equally between their children or give more to one child.  In short, parents are under no obligation to leave their estates equally between their children and they have what the Court calls “testamentary freedom” to decide which of their children receive what benefit from their estate.  There is no obligation of equality between children, and the Court will not enforce equality between children or beneficiaries.

Whilst the Court will not enforce equality, it does not mean that Court will not rectify a parent’s will that does not adequately provide for a child, and that, rather than equality, is the test.  For a parent, the better question to ask is “is what I have left for my child, in weighing up all their circumstances (including financial, health, relationship and contribution) adequate for their education, maintenance and advancement in life?”  If answer to that question is yes in the eyes of the Court, then the Court will not change the gifting of a will.  If the answer to that question is “no”, then the Court has the power to change the terms of the will.

Our friend Sam will argue that he had a better relationship with his mother, and the will should reflect that, so too bad for his siblings.  The significance of the relationship Sam had with his mother is a consideration for the Court in weighing up his siblings claim, but alone, generally, a moral claim of a closeness of relationship is often not enough if you have beneficiaries, such as potentially Sam’s siblings, who may have been left without the key, being “adequate provision”. 

If you’re considering leaving unequal amounts to your children, you’re allowed to do so but beforehand, make sure you get the right advice.  Contact Marsdens Accredited Specialist in Wills and Estates Krystle Wolthers on (02) 4626 5077 to chat further.

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The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.