Navigating estate planning in blended families is rarely straightforward—especially when estrangement is involved. You might believe you’ve made your intentions clear in your will, but Victorian law gives certain family members, including estranged children, the right to challenge it under Part IV of the Administration and Probate Act 1958.
At Hayton Kosky, we regularly advise clients facing these complex family dynamics. Here’s what you need to know—and how to protect your legacy.
Can Estranged Children Contest Your Will?
Yes. Estranged children remain eligible to bring a claim if they can prove you owed them a moral duty and your will failed to make adequate provision.
In the landmark case of Joss v Joss [2020] VSC 424, a daughter estranged from her father for over 40 years still received $3 million from his estate. Why? Despite the strained relationship, the court found her father had continued to support her financially and failed to sever the moral obligation owed to her.
Who Can Make a Family Provision Claim?
Eligible claimants in Victoria include:
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Spouses (including de facto and former)
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Children (biological, adopted, step)
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Dependent grandchildren
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Certain household members or carers
Each case is judged on whether a “moral duty” existed and whether the will fulfilled that duty.
4 Ways to Protect Your Estate
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Use Asset Protection Tools
Transfer key assets into joint names, trusts, or binding superannuation nominations to place them outside your estate. -
Explain Your Reasoning
A well-crafted statement of wishes outlining the reasons for exclusion or smaller provision may assist the court in respecting your intent. -
Structure Your Will Thoughtfully
Consider using life interests, staged inheritances, or mutual wills with your partner to protect each party’s children and long-term intentions. -
Act Early and Get Advice
The law allows 6 months from probate for claims—but even late claims can succeed if the estate remains undistributed.
Final Thought
Your will is more than a document—it’s your voice after death. Don’t let outdated forms or family tensions silence it.
Need Advice?
At Hayton Kosky, our experienced estate planning team can help you structure a will that stands the best chance of withstanding future challenges—no matter how complex your family tree.
Call us today on 03 9557 3355
Or book a confidential consultation at ro*****@*************om.au