Leaving Someone Out of a Will – the Dos and Don’ts

The exclusion of an estranged child, sibling, or former spouse in a Will is not an uncommon occurrence and it is often the case that we get asked ‘how can I stop X from contesting my Will?’ The short answer to this question is… you can’t.

An Eligible Person

The Succession Act (NSW) (“the Act”) recognizes that a certain class of people have a claim on someone’s estate. This class extends to:

• Spouses (including de facto, or former);
• Children;
• Dependents.

Practically speaking, this means that your spouse, child, or someone who is dependent upon you throughout your life, can apply to the court to contest your Will if they have been excluded, or believe they have not been sufficiently provided for.

The Act in this sense further debunks the age-old myth that if you leave someone a nominal amount e.g. $1 in your Will, they will be barred from making a claim.

Circumstances considered by a Court

When an eligible person makes a claim to contest the Will, they must show that the Will makes an inadequate provision for the eligible person.

In deciding whether the Court will make orders for the provisions of a Will to be altered, the Court must consider a range of circumstances including but not limited to:

• The nature of the estate;
• Financial needs and resources of the eligible person (Financial Need);
• Any contribution the eligible person had to the welfare of the will-maker;
• Intentions of the will-maker.

There are a number of ways you can show the intention of the will-maker, one of which is in the provisions of the Will itself. It is often the case that a clause is added to the Will which excludes a certain person and notes the reasons for exclusion for example:

‘I do not make any provision for X, as I no longer have a relationship with X and my responsibility for their welfare ended many years ago.

Although this intention is interpreted on a case-by-case basis and assessed against the relationship and needs of the eligible person, it is a useful way of clearly demonstrating intention.

A similar approach is taken in respect of eligible persons consenting to be excluded under a Will. It is sometimes the case that clients will ask for their children to sign a statutory declaration that notes that they will not make a claim on the Estate. Although speaking to the intention of the will-maker and the children, consent from eligible persons will not necessarily act as a bar to claims.

Making your Will

Given that there is currently no statutory bar to contest a will for eligible persons, it is recommended that you consider the following when creating a Will:

1. Obtain legal advice as to who can make a claim on your estate and the possibility of limiting this claim. Coutts Solicitors have a large Wills and Estates team which can offer practical guidance on preparing your Will and potential claims in the future;
2. Ensure you are providing detailed information to your lawyer on the circumstances of the relationship with excluded persons;
3. Update your Will if there has been a change in circumstance in relation to eligible persons.

Key Take Always

• You cannot completely exclude someone from making a claim on your Will;
• Providing a nominal amount to someone in your Will cannot prevent them from claiming on your Estate;
• Exclusion Clauses in Wills and written consent from eligible persons will not alone prevent claims on Estates;
• It is important to consult a lawyer when considering creating a Will.