Things to think about if you are thinking of leaving someone out of your Will.
A considered person is generally a family member that has been left out of a deceased person’s Will that normally would have been a rightful beneficiary of the deceased’s estate.
Although you have a right to choose the people who will benefit from your estate after your death, it is important to be aware that there are occasions when a will can be challenged or contested.
The people who can challenge a Will (‘eligible people’) are usually:
- A person who was the spouse of the deceased at the time of the Will makers death;
- A person with whom the deceased person was living in a de facto relationship at the time of the Will makers death;
- A child of the deceased person;
- A former wife or husband of the deceased person;
- A person, who was, at any particular time, wholly or partly dependent on the deceased person;
- A grandchild of the deceased person who may have lost their own parent, (a child of the deceased) or was, at that particular time or at any other time, a member of the household of which the deceased person was a member;
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
When a Will is contested the Court has the power and can make orders that provision be made from the estate for the ‘eligible persons’ maintenance, education and advancement in life.
Many considerations are made by the Court before determining whether the claim is valid, amongst them:
- Type of relationship between the Applicant and the deceased person such as family member or any other relationship including *Nature and duration of the relationship;
- Nature and extent of any obligation or responsibility owed by the deceased person towards the Applicant;
- Nature and extent of the deceased estate including any property that is or could be designated as notional estate of the deceased person and any liability or charge to which the deceased estate is subject to;
- Financial resources of the Applicant including earning capacity and financial needs – both present and future;
- Financial situation of the persons who were cohabiting with the Applicant;
- Any physical, intellectual or mental disability of the Applicant;
- Age of the Applicant when the application for Family Provision claims are being
- Any contribution including financials by the Applicant relating to the acquisition, conservation and improvement of the estate of the *Deceased person or towards the welfare of the deceased person or towards the deceased person’s family, made before or after *The deceased person’s death, for which adequate consideration was not received by the Applicant;
- If the Applicant was maintained wholly or partly by the deceased person before the death and if the Court considers it to be relevant that the extent to which and the basis on which the deceased person did so;
- Character and conduct of the Applicant before and after the demise of the deceased person;
- Conduct of any other person before and after the demise of the deceased person;
- Any relevant Aboriginal or Torres Strait Islander customary law; and
- Any other relevant circumstances, including matters in existence at the time of the demise of the deceased person or at the time the application was being considered.
- The age of the Applicant plays a vital role in determining Family Provision claims, for example, a very young Applicant and a very old Applicant have greater needs for provision than a middle-aged Applicant who will be able to support themselves.
In any Court proceeding, the people making the claim have the onus of proving their eligibility.
In the case of Family Provision claims, the Applicants or the persons who are claiming for provisions out of a deceased estate have the onus of proving that they are the eligible persons and the provisions stated in the Will are inadequate.
Individuals are entitled to make a claim against a Will in situations where a Will is valid, but the provisions stated in the Will are inadequate. In such circumstances, the Court can make a few changes in the Will or can distribute the estate in their favour.
An eligible person can make Family Provision claims to the Supreme Court. The Court will determine if there is a valid claim and can pass an Order to provide adequate provisions for proper maintenance, education and for advancement in their life.
Before determining a Family Provision claim, the Court investigates the requirements and needs of the Applicant. The Court also investigates the Applicant’s financial situation and whether such Applicant can meet financial requirements from their own resources or not.
Any provision made for the Applicant by the deceased person either during the deceased person’s lifetime or made from the deceased person’s estate; or
If the Applicant was maintained wholly or partly by the deceased person before the death and if the Court considers it to be relevant that the extent to which and the basis on which the deceased person did so.
If you are considering leaving one of your children out of your Will and that child, then makes a claim the Court will consider the following:
- The child’s needs for proper maintenance, education and advancement in life;
- The details of the relationship between the deceased and the child including the conduct of the child or the parent or both the child and the parent;
- The length of estrangement and the underlying reasons for it;
- The conduct of the child before and after the parent’s death;
- * Written explanations made by the deceased;
- Whether the child has fallen on “hard times”;
- The child’s financial circumstances; and
- The size of the estate and competing beneficiaries and their financial circumstances.
- In cases where there has been a fall out between you and a child, or perhaps numerous
children, it is a good idea to document, in detail, the history of the fall out, how it arose, whether any attempt has been made to mend the relationship etc.
Such things may include unpaid loans, family arguments, abuse etc.
This letter will give the Court your reasons for disinheriting a child (or leaving them less than other children) and therefore the claim will not be a one-sided argument from the claiming child.
It is advisable to seek legal advice if you are considering these issues before drafting a will.
Chase Longman’s lawyers will be able to discuss these matters with you and advise you on the options you have in these circumstances.
For further information contact our team: (08) 9368 1337
Information provided by Willcraft Estate Planning Pty Ltd (An Incorporated Legal Practice)