Can I Exclude my Child from my Will?

Can I Exclude a Child From My Will?

There are many situations where a will-maker might decide to exclude a child from benefiting from their estate. They might determine that the needs of another person—whether another child or someone else—are more pressing and deserving.

Often, will-makers want to exclude a child from benefiting due to a family dispute or lack of contact. Sometimes, they believe one child deserves or needs more than another. Clients frequently ask, “Can I exclude my child from my will?” The answer is yes, but the child might still seek relief. This also applies to spouses and other dependents.

Succession Act 1981

In Queensland, disappointed potential beneficiaries can apply to the Court for proper maintenance from the estate, whether or not there is a Will. Strict time limits apply. Under Part 4 of the Succession Act 1981, this right benefits the Will maker’s spouse (including de facto spouse), child (including stepchild), or dependent (any person who was wholly or substantially supported by the will-maker at the time of death). This also includes the Will maker’s parent, the parent of a child under 18, or a person under 18.

The effect of the “family provision” rights under the Succession Act is 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.

Factors the Court Considers When Assessing a Claim

When assessing such a claim, the Court will have regard to several 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 the claimant’s conduct was such that the will-maker could rightfully disregard them in the estate distribution. For example, the behaviour of such a nature that the will-maker was entitled to disregard them.

Whether as an alternative, there was estrangement – ie the parties had fallen out of touch but there was no disentitling conduct;

The size of the estate – small estates are less likely to be interfered with.

Issue with Excluding Beneficiaries

Excluding beneficiaries poses a challenge because, after the will-maker dies, there is usually little evidence from their side about any disentitling conduct. This can make it difficult to counter claims from individuals who might exaggerate the strength of their relationship with the will-maker. Our Gold Coast estate lawyers can provide guidance on excluding potential beneficiaries and ensuring the will-maker’s intentions are properly communicated. Sometimes, this may involve the will-maker reviewing their own behaviour or resolving any long-standing disagreements.

For any Will enquiries, please contact Peter Muller at peterm@qbmlaw.com.au or on 0755 740111