60 years ago, a baby girl was given up for foster care by her birth mother due to shame about her illegitimate birth. They did not live together after the first year of the baby’s life, and after the first 7 years shared no relationship at all other than biological.
Now the birth mother has died and left only $100 in her Will to that baby girl (now aged 60). The bulk of the estate was left to two other daughters. The disinherited daughter successfully sued for a third of the estate.
People always say it’s not about the money. But when someone is left out of an estate, they feel hurt, and their emotions take them on a roller-coaster ride. Money and love get mixed-up. Heart and head collide. Grief can very quickly turn to anger, and people can easily relive childhood slights.
Highly charged issues of hurt, shame, pride, greed, love, unfairness, resentment, anger, prejudice and entitlement take over from logical thought.
In my legal practice I have heard hundreds of reasons for excluding family from inheritance. Older generations were brought up to have different degrees of tolerance for unwed mothers, couples living-together and same-sex relationships. The rising numbers of step-children provide real challenges to family harmony, and in many cultures it is considered acceptable to leave the bulk of the estate to male children.
How do our laws and the Court system cope with all this? There are two clear perspectives at work here:
Protecting the Victim (and society as a whole): If a parent is neglectful towards their child, should society condone that by allowing an unfair Will to win over the legitimate needs and expectations of the child? This is why the State will determine, after you’ve died, whether your Will has made “adequate provision” for your family.
The Rights of the Individual: On the other hand, shouldn’t each of us, as individuals, have the right to give our assets away to whomever we wish? After all, if we did that during our lifetime (with some exceptions), we could get away with it, so why not through our Will?
Conflict among families over estates is a large and growing “hot-button” topic. Part of it is to do with demographics. A staggering amount of wealth will change hands as Baby Boomers inherit from their parents. Wherever there is big money, you will find people, businesses and governments shouting to be heard – everybody wants their share.
When it comes to estate planning, an intense public debate will gain momentum over the coming decades, as Baby Boomers potentially chafe at Government- or Court- imposed restrictions upon their famed & fierce independence. Boomers have always been self-actualised, and “gotten the job done”. They are unlikely to take kindly to being told what they can & cannot do in their Wills.
And yet, governments as they debate & create legislation, (and hence provide direction to the Courts), must also consider the wider social meaning of depriving a child of its fair share of inherited wealth. If that child is poor she might otherwise be forced onto the Public Social Welfare safety-net, involving increased expense to Centrelink and Medicare. These public resources are already stretched to breaking point, and likely to worsen as the Boomers reach retirement age in record numbers, living longer than ever before, and demanding the highest quality subsidised health care in the world for an extended period.
Will the Boomers succeed in changing Government policy? Only time will tell.
Rod Genders is a senior Australian lawyer specialising in accident compensation and estate planning in Adelaide. His boutique specialist law firm is one of the oldest and most respected in Australia – visit it at www.genders.com.au . Rod is also a prolific author and speaker. Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au/adelaide-lawyer-blog.
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