Writing Family Beneficiaries Out of Your Will
“You may be wondering whether it’s possible to remove or leave a close family member out of your Will. ”
This is a complicated question and depends on the unique circumstances of yourself as the Will-maker – the short answer, however, is yes -- it is possible.
Freedom of a Will-Maker
A Will-maker has complete freedom to gift or dispose of their estate as they see fit. This remains the case even if the result could be considered unfair or trivial to others E.g. a gift to children may be in unequal shares.
Family Provisions Claim
Despite having the freedom to dispose of your estate however you wish to do so, the law identifies that by virtue of the nature of certain close relationships, specific classes of people are eligible to make a claim upon your estate if you have not adequately provided for them. These claims are called ‘family provisions claims’.
There are many factors the Court looks at in assessing the validity of a claim. These can include things such as:
the size of your estate;
the applicants’ financial circumstances;
the applicant’s health or age;
the strength of your relationship; and
any competing claims.
Reducing the Risk of a Claim
It is not possible to prevent someone for making a family provision claim where they meet the criteria of an eligible person. There are however several strategies that we can assist you to establish to reduce the risk of such a claim. These may include:
Formal or informal documentation to prepare for litigation. This will assist your executor to defend any claim as to your intention in the future should the scenario eventuate; or
Establishing a small gift. A claim is substantially harder to establish in the instance a gift of any nature is included in your Will.
Specific Advice
We will provide you specific advice in relation to your circumstances as to whether the person you wish to exclude from your Will is an eligible person and the most appropriate risk mitigation strategy to manage the risk of a family provision claim.
DISCLAIMER
The content given herein is provided for information purposes only. It is general in nature and does not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters.
Connected Legal + Commercial does not accept any liability to any person for the information (or use of such information) which is provided herein or incorporated into it by reference.
The information is provided in good faith on the basis that all persons accessing the content undertake responsibility for assessing its relevance and accuracy and will seek appropriate formal legal advice accordingly.