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Can I leave someone out of my will?

Family provision is a growing area of law, and high profile estate disputes are increasingly being reported in mainstream media.

There are a number of reasons why you may not want another person to receive anything from your estate when you die including: estrangement; dislike; feeling that they have already received their fair share; or because another beneficiary has a greater need for your assets.

If you are concerned about the possibility of someone challenging your Will, it is wise to seek legal advice.

You are free to make a Will dealing with your estate in whatever way you choose. However, the law allows the Court to intervene to change your Will if you had a moral duty to look after someone and did not provide enough for them.

There are plenty of misconceptions about when a Will can be challenged. Common myths include:

Myth #1 – Any of my acquaintances can make a claim against my estate.  

Not just anyone can claim against your estate. Only persons who are ‘eligible applicants’ are able to commence a family provision claim. Spouses and children are eligible to claim against your estate. The other categories of eligible applicants vary between States and Territories and may include people who have lived with you or been financially dependent on you.

Myth #2 – Leaving a small gift in the Will is enough to preclude a ­claim.

In deciding whether to make an order varying the terms of the Will, the Court must decide whether you left adequate provision for the applicant’s maintenance, education and advancement in life. The Court can consider a range of factors including the size of the estate, history of the relationship and the financial needs of the applicant.

Leaving a small gift in the Will is not, in and of itself, effective in precluding a successful claim. The Court will consider whether that gift is adequate provision for the needs of that particular ­beneficiary.

Myth #3 – There is no point making a Will if someone can make a family provision claim ­anyway.

Courts are not in the business of rewriting Wills. While the Court may make an order in favour of a person to whom you had a duty to make provision, the Court limits such provision to what is adequate in the circumstances. If you do not make a Will, the rules of intestacy will determine how your estate is divided and there is a high chance that this distribution will not reflect your ­wishes.

If you are concerned about the possibility of someone challenging your Will, it is wise to seek legal advice.

While family provision claims cannot always be avoided, it is possible to structure your affairs in such a way to reduce the risk of a future claim against your estate.

Rebecca Tetlow is an Accredited Specialist in Wills and Estate Law (NSW) and a Senior Associate of the firm.

18 Kendall Lane, New Acton, Canberra phone (02) 6212 7600 [email protected], www.ddcslawyers.com.au

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