Can I Exclude Someone From My Will?
A common question people ask when creating a will is whether they can exclude a family member from their estate distribution. While the short answer is "yes," doing so in Victoria requires careful consideration due to the family provision rules under the Administration and Probate Act 1958 (Vic). These laws are designed to protect certain individuals from being unfairly left out of a will and give them the right to challenge the will in court.
Your Rights to Distribute Your Estate
In Victoria, you generally have the freedom to distribute your estate as you wish. This means you can choose who receives your assets and who is excluded. However, the law recognises that certain family members and dependents have a right to expect adequate provision for their maintenance and support. This balance between testamentary freedom and family protection can lead to challenges if someone who would typically expect to inherit is excluded from the will.
Who Can Challenge a Will?
Family members and dependents who feel they have not been adequately provided for can make a family provision claim under the Administration and Probate Act 1958. The following individuals are typically eligible to contest a will:
A spouse or domestic partner (including same-sex partners)
Biological or adopted children, including adult children
Stepchildren who were financially dependent on the deceased
Financial dependents who shared a close personal relationship with the deceased at the time of death.
These individuals can apply to the Supreme Court of Victoria, seeking further provision from the estate if they believe they have not been adequately looked after in the will. The court will then assess various factors, such as the nature of the relationship between the claimant and the deceased, the claimant's financial circumstances, and the size and nature of the estate.
How to Minimise the Risk of a Challenge
While you cannot entirely eliminate the risk of a will being challenged, there are ways to minimise the chances of a successful claim. Below are several key strategies:
Document Your Reasons
One effective way to reduce the risk of a claim is to document your reasons for excluding someone in a Letter of Wishes. This document is separate from the will and can provide insight into why certain decisions were made, such as why a particular family member has been excluded or left a smaller share of the estate. Although not legally binding, the court can consider the letter when determining the deceased’s intentions.
A Letter of Wishes can be particularly useful when there is a history of estrangement, conflict, or a reason that might not be immediately obvious to the court. By explaining your decisions, the letter can show that the exclusion or smaller provision was deliberate and based on clear reasons, which may reduce the likelihood of a claim being successful.
Provide Some Level of Support
Instead of entirely disinheriting someone, you might consider leaving a smaller or token bequest to the person in question. This approach acknowledges their existence and may deter them from making a claim. A court may be less inclined to adjust the will if some provision has already been made, albeit modest.
Use a Testamentary Trust
A testamentary trust can be a valuable tool when excluding someone from your will. This type of trust allows you to control how and when your assets are distributed to beneficiaries. For instance, assets held in a trust can be distributed over time or under specific conditions. Testamentary trusts can also protect assets from creditors and family provision claims, offering more control over the future of your estate.
Seek Professional Legal Advice
Excluding someone from a will can lead to legal complications if not handled correctly. It is essential to consult with an experienced wills and estates lawyer, particularly if you're considering excluding someone who may be entitled to make a family provision claim. A lawyer can help you navigate the legal complexities and provide strategies to protect your estate from challenges.
The Role of a Letter of Wishes
A Letter of Wishes is an informal document that accompanies your will, providing guidance to your executor or the court on your reasons for distributing your estate in the manner you have chosen. While it is not legally binding, it can be helpful in explaining your intentions, particularly if you’ve excluded a family member or made unequal distributions.
This letter can outline:
Why you chose to exclude or limit provision for a certain person
Your relationship with that individual
Any other significant factors influencing your decision.
For example, if a child has been estranged for many years or you’ve already provided for them financially during your lifetime, explaining this in a Letter of Wishes can offer clarity and context to your will. The court may take this reasoning into account when assessing family provision claims, reducing the likelihood of a successful challenge.
While you have the right to exclude someone from your will in Victoria, doing so can lead to challenges from family members or dependents. However, by documenting your reasons clearly in a Letter of Wishes, using strategies like testamentary trusts, and seeking professional legal advice, you can reduce the chances of a successful family provision claim.
If you need assistance with drafting your will, excluding a family member, or protecting your estate from potential claims, contact us for expert legal advice tailored to your situation.
Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.