What happens when your relative gives your inheritance to charity?

Imagine this scenario: After months of waiting patiently for your inheritance to arrive, you find out that your mother has donated her estate to a local charity rather than to you. What are your rights? And what legal channels can you pursue to get a better outcome for yourself?

What are your rights as a beneficiary?

As a surviving family member or close relative, you may not have any legal rights to the deceased’s estate. When someone makes a Will, he or she can leave their assets to whomever – or, in the case of a charity, whatever – they choose.

However, the Will maker does have a moral duty, or obligation, to provide for those with whom he or she had a close or significant relationship. If they choose to exclude a partner, spouse or child from their Will, there’s a pretty good chance those survivors will challenge the Will.

You might be able to challenge the will based on necessity 

If you’ve been left out of a Will, you can seek legal advice to first determine whether you’re entitled to challenge the Will. In Victoria, for instance, only certain people are eligible to contest a Will. A challenge also comes down to what the claimant needs from the estate. For example, if you’re currently unemployed and cannot adequately provide for yourself, you may need to turn to the deceased’s estate to help you financially. 

Challenging a Will becomes much harder when you don’t have a financial need. In such cases, the court will often say, “You’ve got money. You’ve got an income. You’ve been doing okay for the last five years… Why do you need more?” Or, “You’ve got a spouse to support you – why should the estate pay?” The more you can show that your relative’s assets or money can help you financially, the better your position for contesting the Will.

I recently had a case in which four charities benefited from a roughly $700,000 estate, while my client, the son of the deceased, received only about $5,000 in the Will. Because my client was in financial need, we were able to go to mediation and successfully negotiate a very good settlement – he received one third of the estate. This was a substantial improvement on what the Will dictated.

Look out for yourself by communicating ahead of time 

Of course, you may admire your family member’s wish to leave some of their money to charity. However, it’s worth having some important conversations with them while they’re still alive so they don’t give everything to charity to the detriment of their loved ones.

Obviously, open communication is the best course of action, but you need to be careful that you’re not coercing or unduly influencing your relative to make a Will that goes against their wishes. If they’re considering leaving their estate to charity, try to understand where they’re coming from, then express your thoughts and make your financial and other concerns known to them. But ultimately, what’s contained in the Will is the Will maker’s decision.

It’s certainly common for people to leave money to charity, but the Will maker should strike a balance when making a decision for their final Will. They need to consider their moral duty to family members versus the needs of the charity.

This article is for general information purposes only; people should seek independent legal advice for their individual circumstances.

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Catherine Iliadis

Maurice Blackburn Melbourne

Catherine Iliadis is a Wills and Estates Lawyer at Maurice Blackburn’s Melbourne office. She practices in both Victorian and Tasmanian estate litigation. Catherine began working at the firm in 2017 while completing her law degree, and completed her clerkship and traineeship here. She was admitted to practice in 2020.

“I am a passionate, understanding and realistic advocate who is driven to achieve a fair and equitable solution for clients. I make sure that I am sensitive t…

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