Can I leave someone out of my Will?

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In New South Wales (NSW), individuals have the choice to distribute their estate as they wish through their will. This however doesn’t stop someone from contesting it. It is therefore crucial to understand the legal implications of excluding certain individuals, as NSW law provides mechanisms for eligible persons to contest a will if they believe they have not been adequately provided for.

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Family Provision Claims in NSW

Under the Succession Act 2006 (NSW), specific individuals, termed “eligible persons,” have the right to apply for a Family Provision Order if they believe the deceased’s will does not make adequate provision for their maintenance, education, or advancement in life.

According to Section 57 of the Act, eligible persons include:

A spouse of the deceased at the time of death
A de facto partner of the deceased at the time of death
A child of the deceased
A former spouse of the deceased
A dependent person (e.g., a grandchild or household member)
A person in a close personal relationship with the deceased at the time of death

These provisions are detailed in Section 57 of the Succession Act 2006 (NSW).

https://classic.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s57.html

Minimising the Risk of a Contested Will

To reduce the likelihood of a Family Provision Claim against your estate, consider the following strategies:

Explicitly State Your Intentions: Clearly document your reasons for excluding an individual from your will. This can provide context and justification for your decisions, which may be considered by the court if a claim is made.
Consider Alternative Provisions: Instead of complete exclusion, you might provide a smaller bequest or establish a trust for the individual. This can demonstrate that you have considered the person’s needs, potentially reducing the motivation to contest the will.
Seek Legal Advice: Consult with an estate planning lawyer to ensure your will is structured effectively. A legal professional can provide guidance on how to articulate your intentions clearly and implement strategies to safeguard your estate from potential disputes.

Court’s Discretion to Alter a Will

Even with careful planning, the NSW Supreme Court retains the discretion to alter the distribution of your estate.

If the court determines that adequate provision has not been made for an eligible person, it can redistribute the estate accordingly. This is outlined in Section 59 of the Succession Act 2006 (NSW).

https://classic.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s59.html

How ALA Law Can Help

While you have the freedom to structure your will as you see fit, excluding certain individuals can lead to legal challenges under NSW law. At ALA Law, we specialise in estate planning and contested wills, helping clients navigate the complexities of the Succession Act 2006 (NSW).

Our expert estate lawyers can provide strategic legal advice to ensure your estate plan:

Aligns with your intentions
Minimises the risk of disputes
Protects your assets for your chosen beneficiaries

If you’re considering excluding someone from your will, contact ALA Law today for expert guidance.