Leaving a relative out of a Will

WillFor a whole variety of reasons, some clients choose to leave close family members out of their Wills.  Sometimes it’s because of a long-standing family conflict, sometimes because they feel that a particular family member does not need as much financial assistance as other family members.

Anyone who wishes to do this must understand the laws of succession, which provide that if certain people are left out of a Will, then they have the right to apply to the Court for appropriate orders.

Under the Succession Act 2006 the following people are defined as “eligible persons” who can make a claim of your Estate:

  • your spouse (wife or husband) (including de facto spouse)
  • your child (including child of your de facto relationship at the time of death)
  • your former spouse (including former de facto spouse)
  • your grandchild (if at any time was wholly or partially dependent on the deceased)
  • a dependent (that is, any person who was at any time wholly or partially dependent on you and was at any time a member of your household)
  • a close friend (that is, any person who was in a close relationship with you at the time of death)

The Court then decides whether or not there has been adequate provision made for the “eligible person”, taking into account various factors, including:

  • the size and nature of your Estate
  • the financial circumstances of the eligible person (claimant), including his or her spouse
  • the financial circumstances of all other beneficiaries to the Estate
  • the relative earning capacity of the claimant and beneficiaries
  • your relationship with the claimant
  • the responsibilities and obligations owed by you to the claimant (debts, etc)
  • any contributions made by the claimant to the acquisition, conservation or improvement of your Estate (funding, support, etc)
  • the contributions made by the claimant to the personal welfare of the deceased (medical bills, house modifications, etc)
  • the provision that was already made to the claimant (gifts, etc)
  • the conduct and character of the claimant (criminal record, etc)
  • the conduct and character of the beneficiaries
  • evidence of your testamentary intentions

It is important that if you wish to leave someone out of your Will, despite the risk that they will make a claim on your Estate, then you should prepare a statement explaining your reasons for leaving them out of the Will.  The statement can either be prepared as a clause within your Will, or as an entirely separate document which is kept with your Will but which will not surface unless a claim is made by the aggrieved person.

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