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Can I Exclude my Child from my Will?
Can I Exclude a Child From My Will?
In some circumstances, a will maker may decide not to provide for a child in their will. This may arise where the will maker considers that other beneficiaries have greater needs or where there are particular family or financial considerations.
It is not uncommon for will makers to consider excluding a child due to family circumstances, such as a breakdown in the relationship or differing financial needs between beneficiaries. While a child can be excluded from a will, this does not prevent them from making a claim against the estate.
Succession Act 1981 (Qld)
In Queensland, eligible persons may apply to the Court for provision from an estate under the Succession Act 1981 (Qld), whether or not a valid will exists. Strict time limits apply.
Eligible applicants include a spouse (including a de facto spouse), children (including stepchildren in certain circumstances) and dependents who were being wholly or substantially maintained by the deceased at the time of death. In some cases, this may also extend to a parent or a person under the age of 18.
These claims, commonly referred to as family provision claims, allow the Court to make orders for adequate provision from the estate. The process is regulated to balance the interests of the applicant with those of other beneficiaries.
As a result, while a child or dependent may be excluded from a will, they may still have the right to bring a claim against the estate.
Factors Considered by the Court Famin ily Provision Claims
When assessing a claim, the Court considers a range of factors, including:- The needs of the claimant compared with the needs of other beneficiaries
- Whether the claimant has a moral claim, for example through contributions to the estate or care of the will maker
- The nature of the claimant’s conduct and whether it justifies exclusion from the estate
- Whether there has been estrangement and the circumstances surrounding it
- The size and nature of the estate
Issues Arising When Excluding Beneficiaries
Excluding a beneficiary can give rise to challenges, particularly as there may be limited evidence available from the will maker after their death to explain the decision.
This can make it more difficult to defend claims brought by individuals who assert a stronger relationship with the deceased. Careful estate planning and clear documentation of intentions can assist in managing these risks.
For advice on will planning and potential claims, please contact Peter Muller at peterm@qbmlaw.com.au or on 07 5574 0111.
Wills and Estates Areas Of Practice
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Frequently Asked Questions
Yes. A child may be excluded from a will. However, exclusion does not prevent an eligible person from making a claim against the estate under the Succession Act 1981 (Qld).
Yes. A child who has been excluded, or who believes they have not received adequate provision, may be entitled to bring a family provision claim against the estate.
The Court may consider factors such as the financial needs of the claimant and other beneficiaries, the relationship between the parties, contributions made to the deceased and the size and nature of the estate.
Not necessarily. Estrangement is one factor the Court may consider, including the circumstances surrounding the relationship breakdown, but it does not automatically prevent a claim.
Careful estate planning, properly drafted wills and clear documentation of your intentions may assist in reducing the risk of disputes or claims against the estate.
Yes. Strict time limits apply to family provision claims and other estate disputes in Queensland. Early legal advice is important to protect your position.
Frequently Asked Questions
Yes. A child may be excluded from a will. However, exclusion does not prevent an eligible person from making a claim against the estate under the Succession Act 1981 (Qld).
Yes. A child who has been excluded, or who believes they have not received adequate
provision, may be entitled to bring a family provision claim against the estate.
The Court may consider factors such as the financial needs of the claimant and other beneficiaries, the relationship between the parties, contributions made to the deceased and the size and nature of the estate.
Not necessarily. Estrangement is one factor the Court may consider, including the circumstances surrounding the relationship breakdown, but it does not automatically prevent a claim.
Careful estate planning, properly drafted wills and clear documentation of your intentions may assist in reducing the risk of disputes or claims against the estate.
Yes. Strict time limits apply to family provision claims and other estate disputes in Queensland. Early legal advice is important to protect your position.
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- Level 5, Evandale Place, 142 Bundall Road, Bundall, QLD, Australia
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- Excluded Individual/Licence Cancellation
Liability limited by a scheme approved under Professional Standards Legislation.
©2024 QBM Lawyers. All Rights Reserved
- Building and Construction Litigation
- Gold Coast Building Lawyers
- Excluded Individual/Licence Cancellation
Liability limited by a scheme approved under Professional Standards Legislation.
©2024 QBM Lawyers. All Rights Reserved