LOCH LEGAL FLICKS: HOME ALONE AND LEAVING YOUR CHILDREN OUT OF YOUR WILL

Christian Chenu

‘Tis the Season

There are certain sounds that herald the arrival of Christmas: sleigh bells ringing, the crack of bonbons, and the sound of grievous bodily harm inflicted on bumbling thieves as Macauly Culkin defends his home from would-be burglars.

Holidays mean nothing if not repeat viewings of a timeless Christmas classic estate planning movie: Home Alone.

Christmas Cheer and Legal Analysis

The central premise of Home Alone should be familiar to all and sundry by now – a young boy must defend his home from burglars after his family accidentally leaves him behind when they depart for their Christmas holiday in Paris.

On its face, the movie calls for a criminal law analysis, so let’s get that out of the way.

Excessive Self-Defence

In the course of defending his home, Kevin McCalister (played by Macaulay Culkin) sets people on fire, crushes them with various heavy implements, shoots them at point-blank range using a BB gun, electrocutes them, and inflicts various piercing injuries.

His justification for doing so is the in-progress home burglary that comprises the final act of the movie.

A burglary occurs when a person enters a property as a trespasser with intent to steal or commit an offence involving an assault or damage to property.

In most other contexts, Kevin’s actions would ordinarily constitute assault. He is allowed to defend himself against a burglary, but only where that self-defence is reasonable and he believes that his conduct is necessary. His self-defence must be proportional to the circumstances of the burglary.

The fact that we see Kevin prepare an actual “Battle Plan” probably undermines any claim he has as to reasonableness or proportionality (if you have time to draw up a battle plan, you have time to call the police). Signing his name to the plan was also probably unwise.

But then again, Kevin is presumably under ten years old and, in the eyes of the law, unable to commit an offence. So have fun with the BB gun, Kevin.

Child Neglect

Which brings us to Kevin’s parents.

In Victoria, it is an offence under the Children, Youth and Families Act 2005 to leave a child unattended for an unreasonable time without making appropriate arrangements for that child’s care. This offence is serious, and charges often relate to parents making short trips to shopping centres, cafes and pubs. In light of that, leaving a child at home during a Parisian holiday sounds much worse.

Kevin’s parents might be able to argue lack of intent as a defence, but they will also have to confront the fact that they have shown a pattern of behaviour. Between Home Alone and the sequel Home Alone 2, the McCallisters leave their son alone on two separate occasions. To paraphrase Oscar Wilde, to leave a child alone once may be regarded as a misfortune; to do it twice looks like carelessness.

Home Alone with the aftermath: a fractured family

But let’s project into the future.

Imagine this hypothesis: after these repeated abandonments, Kevin loses all trust in his parents and their relationship eventually breaks down and cannot be repaired. He becomes estranged from his parents. Having left their son out of their holiday plans, the McCalisters also leave Kevin out of their estate plans and deliberately make no provision for him in their wills. On their passing, Kevin wants to contest his exclusion from their estates. What can he do?

Under the Administration and Probate Act 1958, the class of persons who may apply for a family provision order is limited to the following:

  1. spouses and domestic partners at the time of the deceased’s death;
  2. former spouses and domestic partners in the midst of a separation;
  3. children (including adopted children, step-children and people who believed they were children of the deceased) of the deceased who are under 18 years of age, are between 18 and 25 years of age and are full-time students, or who have a disability;
  4. any other children;
  5. dependent registered caring partners of the deceased;
  6. dependent grandchildren; and
  7. dependent members of the deceased’s household.

Kevin will have six months from the grant of probate to contest his parent’s will.

In making a family provision order, the court must be satisfied that the deceased had a moral duty to provide for the applicant. The court will consider where the deceased has made ‘adequate provision’ for the applicant (‘adequate’ is variable depending on the circumstances of the applicant, but means more than mere subsistence). The court must also have regard to the matters set out in section 91A of the Administration and Probate Act, including the size of the estate, the financial needs of all potential beneficiaries, and any evidence left by the deceased as to the reasons for their decision to exclude a relative as a beneficiary. Poor Kevin McCalister, broken by his parents’ unforgivable neglect, might have solid grounds to contest the will.

Cases will respond significantly according to the facts of the matter. For instance, a will-maker might legitimately wish to exclude a child on the basis that they have already made adequate provision for that child during their lifetime. This is common in families where a child receives their inheritance early. It is particularly common in farming families, where one child may receive all of the farming land at the time of their parents’ retirement, with the other children receiving the remainder of the estate on their parents’ passing. In this case, the child who received the farm might be tempted to contest their exclusion under the will. This is why it is important that will-makers leave written reasons for their decisions. It is also why Loch Legal recommends a memorandum of directions as part of your estate planning solution.

Loch Legal will be happy to consider all of your estate planning requirements. Please contact Sophie Cohen (sophie@lochlegal.com.au) on 0411 866 505 or Christian Chenu (christian@lochlegal.com.au) on 0417 015 997 to discuss how we can help.

Home Alone is now streaming on Disney+ starring Macaulay Culkin and Joe Pesci

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