Can I exclude my child from my Will?
There are many occasions in which a Will maker might decide that their child does not deserve to benefit from their estate or that the needs of another person (whether that is another child or not) outweigh those of the person that they want to exclude.
Often, the desire to exclude a child from taking a benefit is because of a dispute in the family or a lack of contact. Sometimes it might be that the Will maker believes that one child deserves more or needs more than another. We often have clients ask “can I exclude my child from my will?”, and ultimately the answer is that yes you can, but they might be able to obtain relief. The same applies for spouses, and certain other dependents.
In Queensland, disappointed potential beneficiaries can apply to the Court for proper maintenance to be made for them under out of the estate. This applies whether there is a Will or not, however strict time limits do apply. The right arises under Part 4 of the Succession Act 1981 and it applies for the benefit of the Will maker’s spouse (which includes defacto spouse, child (which includes step child) or dependent (being any person who was wholly or substantially maintained or supported by the Will maker as at the time of death, being the parent of the Will maker, or the parent of a child of the Will maker who is under 18, or a person under 18).
The effect of the “family provision” rights under the Succession Act are to allow the Court to order that such provision is made as they think fit. These applications are substantially regulated to ensure that the rights of other potential claimants and existing beneficiaries are observed.
The result of this is that while a child (or other dependent) can be excluded as a beneficiary, this will not affect the rights of that person to make a claim for provision by the Court.
When assessing such a claim, the Court will have regard to a number of factors which include:
- The need of the claimant in comparison to the need of other claimants or beneficiaries;
- Whether there is a strong moral claim, for example if the claimant had assisted in building up the estate or in the care of the Will maker;
- Whether there had been disentitling conduct on the part of the claimant – ie behaviour of such a nature that the Will maker was entitled to disregard them for the purpose of the distribution of their estate;
- Whether as an alternative, there was estrangement – ie the parties had fell out of touch but there was no disentitling conduct;
- The size of the estate – small estates are less likely to be interfered with.
A difficulty with excluding beneficiaries is that once the Will maker dies, there is no or little evidence from their side about any disentitling conduct. This can present challenges in arguing against the case of claimants who might suggest that their relationship was better or stronger than what it was in truth. Our Gold Coast estate lawyers can advise in respect of the exclusion of potential beneficiaries and options for properly promoting the intentions of the Will maker. Sometimes that might mean that a will maker needs to look at their own behaviour as well, or to attempt to resolve any long standing disagreement.