Can You Exclude Someone from Your Will? Risks & Realities
When preparing a will, many Australians assume they have complete freedom to distribute their estate as they wish. While testamentary freedom is a cornerstone of Wills & Estate Planning Law, the reality is more complex. Excluding someone from your will—particularly a close family member—can lead to challenges, disputes, and unintended consequences. This article explores whether you can exclude someone from your will in Australia, the risks involved, and how to minimise disputes through careful estate planning.
The Principle of Testamentary Freedom
Australian law recognises the right of individuals to decide how their assets are distributed after death. This is known as testamentary freedom. In theory, you can choose to leave your estate to friends, charities, or even exclude certain family members altogether.
However, this freedom is not absolute. Each state and territory has laws—often referred to as family provision laws—that allow certain eligible people to challenge a will if they believe they have not been adequately provided for.
Who Can Contest a Will?
Under Wills & Estate Planning Law, the categories of people eligible to contest a will vary by jurisdiction. Generally, they include:
Spouses or former spouses
De facto partners
Children (including stepchildren and adopted children)
Dependants who were financially reliant on the deceased
For example, under the Succession Act 2006 (NSW), these individuals can file a family provision claim if they believe the will does not adequately provide for their proper maintenance, education, or advancement in life.
The Risks of Excluding Someone from Your Will
Excluding a close family member can create emotional and legal complications. Some of the key risks include:
Family Provision ClaimsIf a dependent or eligible relative is excluded, they may apply to the court for a share of the estate. This process can be costly, time-consuming, and emotionally draining for your beneficiaries.
Legal Costs and DelaysWill disputes often result in significant legal expenses, which may be paid from the estate itself. This reduces the overall inheritance available to beneficiaries.
Strained Family RelationshipsEven if the excluded person does not pursue a claim, tensions and resentment among family members may arise, leading to long-term disputes.
Can Exclusion Ever Be Successful?
In some cases, exclusion can hold up in court, particularly if the individual has been estranged from the deceased for a long time or is financially independent. Courts consider factors such as:
The nature of the relationship between the deceased and the excluded person
The size of the estate
The financial needs of the claimant compared with other beneficiaries
Any evidence of misconduct by the claimant
While exclusion is legally possible, the courts maintain a focus on fairness, particularly where dependants are involved.
Strategies to Minimise Disputes
If you wish to exclude someone from your will, it is important to take steps that strengthen your estate plan and reduce the risk of a successful challenge. Strategies may include:
Detailed Will DraftingWork with an experienced solicitor to draft a clear, well-structured will. Including a statement explaining your decision to exclude someone may help the court understand your intentions.
Statutory Declarations or Letters of WishesSupplement your will with documents that outline your reasoning. While not legally binding, they can provide context to support your decision.
Consider Alternative ArrangementsUsing trusts, binding financial agreements, or lifetime gifts may reduce the assets available in the estate, limiting the scope of potential claims.
Obtain Professional AdviceEngaging a lawyer who specialises in Wills & Estate Planning Law ensures your estate plan is legally sound and tailored to your circumstances.
Balancing Freedom and Family Responsibility
The reality of estate planning in Australia is that your freedom to exclude someone from your will is balanced against legal obligations to provide for dependants. While you can make your wishes known, courts have the power to override exclusions where fairness demands it.
Excluding someone from your will is legally possible, but it comes with risks. Understanding the limits of testamentary freedom and the operation of family provision laws is crucial in avoiding costly disputes. With careful planning, open communication, and expert legal advice, you can protect your estate and ensure your wishes are respected.
At New South Lawyers, we specialise in Wills & Estate Planning Law. Whether you are drafting your first will, updating an existing one, or concerned about potential disputes, our experienced lawyers can guide you every step of the way.
