Written by: Scott Lorback
Is there someone you want to exclude from your Will? Even if you’ve already written a Will cutting somebody out, it may be worth a second look. The person you wish to exclude may still be entitled to make a claim on your estate under Queensland’s Succession Act 1981.
In this blog, we will look at whether you are allowed to exclude someone from your Queensland Will and the wrong and right ways to protect against a claim.
Can You Exclude Someone from Your Queensland Will?
You are free to make a Will on whatever terms you choose. There is no law preventing you from cutting someone out of your Will or giving your entire estate to your dog (yes; it happens!) or a casual acquaintance.
There is also no law forcing you to name a spouse or child as a beneficiary. However, after you die, there are certain family members and dependents who can make a claim against your estate if they believe they were unfairly left out. This is commonly known as contesting a Will or challenging a Will.
Queensland Legislation Could Rewrite Your Will
If you decide to exclude someone from your Queensland Will, remember they can still challenge it under Queensland law. Queensland legislation (the Succession Act 1981 ) provides a way for someone who wants to contest a Will to apply for more from the estate.
If the person you excluded is eligible to make a claim and meets the requirements necessary to show their need, the law effectively rewrites the Will to set aside part of the estate for them. These claims are called family provision applications.
Only certain people with a particular connection to the deceased can make a family provision application. These include your spouse, partner, child, stepchild and specifically defined dependents.
To learn more about family provision applications, read our article: Contesting or Challenging a Will? Here is how to get the process started.
So how do you prevent Queensland legislation from rewriting your will? Let’s look at the wrong and right ways to successfully leave someone out of your estate.
Wrong Ways to Exclude Someone from Your Will
We often see a couple of strategies relied on to write someone out of a will. These include:
- Stating the reasons for writing someone out of the Will
- Leaving a small gift in the Will for a potential claimant
But these strategies are NOT effective. Read on to learn why.
Excluding Someone May Actually Strengthen Their Claim
A statement in the Will or in a separate statutory declaration is often made in the hope of defeating a claim. This explains why someone is cut out of the Will or receives a reduced share.
The reasons given may personally be very strong and important but legally, they may only protect the Will in extremely limited circumstances. Sometimes, the reasons given have the reverse effect and actually improve the chances of a successful claim.
Gifts May Alert Someone To Your Estate
Another common myth is that leaving someone a small gift in the Will prevents them from contesting the Will after you die. This is simply not correct. It has no real legal effect and in many cases, it is even counter-productive.
For example, if an estranged person is promised a small gift, the Will’s executors must contact that person to arrange the gift. This can alert the person to the Willmaker’s death and their entitlement to make a claim when they would have otherwise been unaware of either.
The Right Way to Exclude Someone from Your Will
If you intend to exclude a person who is eligible to challenge your Will under Queensland law, seek legal advice from a wills and estate lawyer to discuss your options.
The bottom line is that if an eligible person can prove they have need, the law will intervene and make provision for that person from the estate. Despite this, there are still successful ways to prevent your assets from ending up in the wrong hands after you die. Careful planning around how your assets are owned and controlled when you die can completely defeat or even prevent a claim from being made at all.
Need Assistance?
At Greenhalgh Pickard Solicitors and Accountants we have an experienced team of estate planning and litigation solicitors ready to assist you to protect your wishes and ensure your intentions are carried out. If you are thinking of excluding someone from your Will, our experienced Wills and Estates Lawyers are here to help. Contact us for an obligation free discussion.
Disclaimer:
The information contained in this newsletter is provided for informational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this newsletter without seeking appropriate legal or other professional advice. The content of this newsletter contains general information and may not reflect current legal developments, verdicts, or settlements. We expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this newsletter.
Greenhalgh Pickard’s Wills and Estates Team
