Can I exclude someone from my Will? October 14, 2022

As a testator (will maker), you are free to leave your property to whomever you choose. You are  free to exclude whomever you choose too. However, there are risks in excluding someone, especially if that person is financially dependent on you. If you are considering disinheriting someone, you should seek legal advice to answer your question, “Can I exclude someone from my will?”. Such advice will help you assess the likelihood of a claim against your estate and identify  other possible legal issues. 

When might I consider excluding someone from my will?

There are many situations in which you may consider leaving someone out of your Will. Perhaps: 

• You recently separated from your spouse
• You are estranged from your child
• You previously made substantial gifts to your child
• You have a child in greater need than the rest of your family
• You fear that a beneficiary will squander their inheritance

Although you may have valid reasons to exclude someone from your Will, your decision can be challenged or cause conflict and delay in the administration of  your estate.  

Certain persons can make a claim on your estate if they can show you had a moral obligation to provide for them and you failed to do so. This is called a family provision or testator family maintenance claim.

However, the court will not make an order for a person to receive a share or greater share of your estate unless that person meets several requirements.

How can someone make a claim on my estate?

Under Victorian laws, only an ‘eligible person’ can apply to the court for family provision:

• Your spouse and children are automatically eligible
• Your grandchildren may be eligible if they can show they were in a dependent relationship with you
• Other members of your household may be eligible if they can show they were in a dependent relationship with you
• Your former spouse or partner is eligible if you have not yet resolved your family law financial settlement

The eligible person must show that:

1. You did not provide adequate provision in your Will for their proper maintenance and support; and 
2. You had a moral duty to do so

‘Adequate’ provision in your Will would satisfy the actual needs of the person. ‘Proper’ maintenance takes into account the standard of living the person enjoyed during your lifetime.

For example, if your family is small and your estate substantial, the person’s needs might be small, yet an assessment of their ‘proper maintenance’ dictates they receive a large share of your estate.

On the other hand, if you have a big family and a small estate, and you leave each child a roughly equal share, those shares may be insufficient to adequately provide for each child but still considered proper.

The court will consider several factors when deciding whether to make an order for further provision, including:

• The terms of your Will
• Evidence of your reasons  
• Evidence of your intentions  
• The eligible person’s relationship with you
• If estranged, the eligible person’s attempts at reconciliation
• The nature and value of your estate
• The financial circumstances of the eligible person 
• The financial circumstances of the other beneficiaries
• The eligible person’s ability to support themselves
• Any contribution by the eligible person to your estate 
• Any contribution by the eligible person to your welfare
• Any benefits you previously gave the eligible person
• The eligible person’s character and conduct

Even if the eligible person can show that you did not make adequate provision for them in your Will, the court is not required to make an order for family provision. It will exercise its discretion and consider all the circumstances.

How do I reduce the risk of challenges to my estate? 

You cannot eliminate challenges to your Will. Despite popular belief, providing a nominal sum of money in your Will to a potential claimant will not prevent a claim.

However, you can make your Will more difficult to contest, so it’s important to seek our legal advice when making your Will. We can help you to:

• Assess your circumstances 
• Consider your options
• Develop a strategy to minimise possible claims on your estate.

The final word

When a person claims against an estate, the estate often bears the costs. A dispute may be resolved early or progress to mediation or court. The emotional toll on your loved ones can be burdensome too.

Precise Will drafting and estate planning can bolster the chances of your estate being distributed as you desire, so please contact us if:

• You are considering leaving a substantially lesser amount to your spouse, child or another family member; or
• You are considering excluding your spouse, child or another family member from your Will; or
• You are concerned about a potential challenge to your estate.

Article written by Joseph Anker.

DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.