Family relationships require effort, energy, and hard work. Despite our best efforts, sometimes relationships break down irretrievably.
This can often result in a family member being left out of a Will. Unfortunately, deciding to exclude a family member from a Will can have severe financial consequences if not done properly, as it may result in the Will being contested.
When drafting a Will, a testator must have regard to a number of factors, including the nature and extent of their estate i.e. what they own, and the competing claims for those assets. In Queensland, spouses, children and dependants are eligible to contest a Will. If you wish to exclude anyone in that category from your Will, you must be aware of the ‘threshold’ set by the Courts, which is sometimes referred to as “Disentitlement” or “Disentitling Conduct”.
In the case of T v R & Anor  the Court set out elements required to properly exclude someone from a Will.
In that case, the applicant son filed a family provision claim (i.e. contested) his father’s last Will. The father’s Will left nothing to the applicant son or his sister (the daughter). Instead, the father left his estate to his grandchildren. The father stated he had made no provision for his children as he was of the view that they were both financially stable. With respect to his applicant son, the testator father had written a letter a few months before his passing providing some reasons as to why he had chosen to exclude his applicant son from the Will.
The letter included the following reasons:
- that they had had no contact for 12 years;
- that he did not want his son to ‘in anyway shape or form benefit from my estate, absolutely!’;
- that his only contact with him was when his son phoned him to post his bail and when he refused he was told that he ‘was no longer his father’;
- his son was in constant trouble with the law
- his son stole many valuable items from the family;
- he loaned his son money and none was ever repaid
- his son was violent towards his daughter many times
- his son assaulted his granddaughter and was convicted of those charges;
- his son had been in jail for 3 years on 22 different charges all resulting from one night while under the influence of drugs;
- that he and his family were afraid of his son and what violence he may inflict upon them.
The credibility of this letter was supported by a statutory declaration from the testator father’s previous Wife being the applicant son’s mother, which stated similar reasons for disentitling the applicant son. The Court found that this corroboration of documents shows the testator father’s true intentions at the time of the decision and the reasons for it.
After the Courts reviewed all the evidence presented, the Court said:
“In this case when the conduct of the applicant is looked at from the viewpoint of the testator, it can be seen that the applicant’s behaviour did affect the testator such that he felt, in good conscience, that he should make no testamentary provision for his son. It is clear that he gave the issue much consideration”, and further goes on to state that “The testator’s reasons which caused him to determine to make no provision in his will for the applicant centred upon the absence of a relationship between them. “
The Court held that the applicant son had failed to meet the criteria to show that his father had a moral duty to make provision for him based on the relationship and the surrounding circumstances between the testator father and applicant son. The Court further stated that even if the provision left in the Will had been deemed to be inadequate, the conduct of the applicant son during the process of the trial would have had an adverse effect on the applicant son’s case.
Unfortunately, many people exclude people from Wills without properly documenting their reasons which may result in the Will not being upheld. If Court proceedings are started, the estate usually incurs tens of thousands of dollars in costs.
Whilst there is no such thing as a watertight Will, it is important to make sure that the Will is drafted in a way which makes it difficult to challenge. If you are considering excluding anyone from your Will, please book an appointment so that we can provide you with appropriate advice.