If you are considering excluding a child from your Will, it is crucial to understand the legal framework under Australia’s Wills & Estate Planning Law. This article explains whether it is legally possible to exclude a child, the potential consequences of doing so, and how to safeguard your Will against challenges.
What Does Testamentary Freedom Mean in Australia?
Testamentary freedom is the principle that allows individuals to decide how to distribute their assets after their death. Under Australian law, a person has the right to write their Will according to their wishes, including who will inherit their estate and who will be excluded.
However, this freedom is not absolute. In certain circumstances, the law allows individuals who believe they have been unfairly left out of a Will to challenge it. These challenges often occur under the Family Provision Laws, which aim to ensure that eligible people receive adequate financial provision from the deceased’s estate.
Can You Legally Exclude a Child from Your Will?
The short answer is yes – you can exclude a child from your Will. Australian law permits you to make decisions about how your estate is distributed. However, this decision comes with risks. If a child believes they have been unfairly excluded, they can file a Family Provision Claim to challenge the Will.
The Succession Act 2006 (NSW) and equivalent legislation in other states and territories provide the legal framework for family provision claims. If a court finds that a child was not adequately provided for, it can order a redistribution of the estate, regardless of the deceased’s wishes.
Family Provision Claims: How Do They Work?
Family provision claims allow eligible individuals, including children, to contest a Will if they believe they have not been adequately provided for. Courts assess these claims based on several factors, including:
The financial needs and circumstances of the claimant.
The size of the estate.
The nature of the relationship between the deceased and the claimant.
The contributions (financial or otherwise) made by the claimant to the deceased’s estate.
The reasons for excluding the claimant, if any are provided in the Will.
If the court determines that the exclusion was unreasonable, it can order a redistribution of the estate to provide for the excluded child.
Who Can Make a Family Provision Claim?
Under Australian law, specific individuals are eligible to make a family provision claim, including:
A spouse or de facto partner.
A child (biological, adopted, or sometimes stepchildren).
A former spouse or partner in certain circumstances.
Individuals who were financially dependent on the deceased or part of their household.
In the case of children, the law does not distinguish between adult children and minors. Both can file a claim if they believe they were unfairly excluded.
What Factors Will a Court Consider?
When assessing a family provision claim, the court will consider a range of factors to determine whether adequate provision was made for the excluded child. These factors include:
Financial Need: The financial position of the claimant, including their income, assets, and liabilities.
The Estate’s Value: The size of the estate and whether there are sufficient assets to accommodate the claim.
Relationship with the Deceased: The nature and closeness of the relationship between the deceased and the claimant.
Moral Duty: Whether the deceased had a moral obligation to provide for the claimant.
Reasons for Exclusion: Any reasons provided by the deceased for excluding the claimant, such as estrangement or misconduct.
For example, if a child was estranged from the deceased for many years, this could be a relevant factor. However, courts often investigate the reasons for estrangement and whether the deceased contributed to the breakdown of the relationship.
Steps to Exclude a Child from Your Will
If you intend to exclude a child from your Will, it is essential to take steps to minimise the risk of a successful challenge. Here are key strategies:
a) Document Your Reasons ClearlyOne of the most effective ways to protect your Will is to document your reasons for excluding a child. You can include a written explanation, often referred to as a statement of reasons, with your Will. This document should outline why you have decided to exclude the child and provide any relevant supporting evidence.For example:
A history of financial support provided to the child during their lifetime.
Evidence of estrangement or misconduct by the child.
The child’s financial independence and lack of need.
While this statement does not guarantee that the Will cannot be challenged, it helps demonstrate that the decision was intentional and considered.
b) Leave a Nominal AmountSome individuals choose to leave a small, nominal amount (e.g., $1,000) to the child they intend to exclude. This can signal that the child was not forgotten but intentionally provided for in a limited way. However, this approach may still prompt a family provision claim if the child believes they were not adequately provided for.
c) Use a Testamentary TrustA testamentary trust can be an effective tool to manage and distribute your assets. While it does not prevent a challenge, it can make it more difficult for a claimant to access funds. Testamentary trusts provide greater control over how assets are distributed, which can help minimise risks.
d) Seek Professional Legal AdviceExcluding a child from your Will is a complex and sensitive matter. To ensure your Will is legally sound and less vulnerable to challenges, consult an experienced Wills & Estate Planning lawyer. They can help you draft a Will that reflects your wishes while minimising the risk of a successful claim.
What Happens if a Will Is Successfully Challenged?
If a child successfully challenges a Will, the court can order a redistribution of the estate. This means the excluded child could receive a share of the estate, regardless of the deceased’s intentions.
The court’s decision will depend on the circumstances of the case, including the financial needs of the claimant and the size of the estate. If other beneficiaries have already received distributions, they may be required to return part of their inheritance to accommodate the claimant.
How to Minimise Disputes Over Your Will
To minimise the risk of disputes and challenges to your Will, consider the following steps:
Update Your Will Regularly: Ensure your Will reflects your current wishes and circumstances.
Communicate Your Intentions: While it can be difficult, discussing your estate plans with your family can help manage expectations and reduce the likelihood of disputes.
Include a Statement of Reasons: Clearly document your reasons for excluding a child.
Seek Legal Advice: Work with an experienced lawyer to draft a clear and legally sound Will.
However, this freedom is not absolute. In certain circumstances, the law allows individuals who believe they have been unfairly left out of a Will to challenge it. These challenges often occur under the Family Provision Laws, which aim to ensure that eligible people receive adequate financial provision from the deceased’s estate.
Key Takeaways
Australian law allows you to exclude a child from your Will, but this decision can be challenged under the Family Provision Laws.
Family provision claims are assessed based on financial need, the size of the estate, and the relationship between the deceased and the claimant.
To minimise challenges, document your reasons for exclusion, consider alternative estate planning tools, and seek professional legal advice.
While testamentary freedom is an important principle, it is balanced against the need to provide for family members who may have a legitimate claim. Excluding a child from your Will is a significant decision that should not be taken lightly.
Estate planning requires careful consideration and expert guidance to ensure your wishes are carried out while minimising risks of disputes. At New South Lawyers, our experienced Wills & Estate Planning team can help you draft a legally sound Will, navigate complex family dynamics, and protect your estate from challenges.
