It is often the case that not everyone in a family will be of the same mind. Not all families operate as harmonious units. If rifts or disagreements occur, or children become estranged, parents often enquire about ways to disinherit these family members in their wills. It should be noted from the outset that immediate family members may have a legal right to contest the will if they are excluded. As a general guide, only a spouse, defacto partner, child or a person financially dependant on the deceased can make such claims.
The Courts have adopted the approach that if a valid claimant has been left without adequate provision under the will, then an order may be made to rectify this. As children are often able to satisfy the Courts that they rely on their parent’s financial support, it has become increasingly difficult to exclude children from a will. Even when a person leaves good and valid written directions as to why they have excluded children from their will, the Courts can (and do) override these statements. It may be the case that providing valid reasons for disinheriting a child could convince the Court to reduce any claim made by the child. The Court will generally weigh up the needs of the person making the claim against the wishes of the deceased.
If you have a situation where you want to exclude a family member from your will, it is a complex legal issue. Simply leaving a statement with your will is often not sufficient – there are certain particulars that need to go into such a statement. There may however be other ways to prevent family members getting assets. We would suggest you contact us to make an appointment if you need assistance with such matters.
