What if you want to leave someone out of your Will?


Leaving assets to someone in your Will is simple, but what if you don’t want someone getting a share of your estate?  Australian law makes it impossible to completely prevent a claim being made against your estate but that doesn’t mean there’s nothing you can do.

There are a whole host of reasons you might want to exclude a person or people from your Will.  Maybe you’re estranged from the ‘black sheep’ of the family.  There might have been a falling out.  Maybe you’ve gone your separate paths.  Maybe you want to give your estate to charity, or maybe you’ve given enough away during your lifetime and want your dependent(s) to find their own way in life.  We understand that the human condition is a wide and varied thing and there’s no shame in doing what you feel is right.

Plus, at the end of the day, it’s your estate and you can deal with it however you want, right?

Unfortunately, nothing’s ever (quite) that easy.  Under the Inheritance (Family Provision) Act 1972 (SA) section 6, there are a variety of people who are able to make a claim to get a distribution out of your deceased estate, regardless of the intentions of your will.  They are:

  • Spouses and ex-spouses;
  • Domestic or de facto partners;
  • Any children dependent on you;
  • Grandchildren;
  • And, if they cared for or supported you during your lifetime, parents and siblings.

Of course, having the right to make a claim doesn’t guarantee that claim will be successful.  The primary contention that a claimant must make is they have not been left with adequate provision for their proper maintenance, education or advancement in life.[1]  In determining what ‘adequate’ provision is, the court has unlimited discretion in deciding what factors they can look at, including, but not limited to, your relationship with the claimant, any past history of generosity and the size of your estate.

So what can you do to forestall Family Provision claims?

Claims under the Family Provision Act can never be 100% prevented but with careful and deliberate Will drafting and estate planning you can minimise the chances of a claim being successful.  Making exact plans requires a detailed understanding of your assets, estate structure and potential beneficiaries, which is why it is so important to get skilled legal advice when drafting your end-of-life documents.  Some possible methods to avoid your will being successfully contested are:

  • Utilising joint tenancy in properties so that they pass to the surviving partner and never enter your estate.
  • Prudent use of binding death nominations so that superannuation and insurance policies go direct to the intended recipients (be aware of potential tax issues, though!)
  • Leaving ‘adequate’ provision to the potential claimant.  You might be thinking that this is exactly what you wanted to avoid doing, but making a ‘reasonable’ bequest may cost your estate much less than if a Family Provision claim is made.  It can be hard for a claimant, particularly one of poor financial means, to argue they have been left without adequate provision if they are sitting on a nest egg!

All of this coupled with precise and informed Will drafting can bolster the chances that your estate is distributed exactly as you desire it.  Nothing is 100% guaranteed in the realm of Family Provision claims, but at Bambrick Legal we can ensure that you and your estate are in the best possible position to defend against challenges to your end-of-life decisions.