In this edition of 'It depends', associate Sarah Camm talks about whether and how you can exclude someone from your Will.
Hi and welcome to this week's episode of It Depends. This week we're going to be talking about whether and how you can exclude someone from your Will.
Can I exclude someone from my Will?
Yes, there is no law in Queensland which dictates who you need to provide for in your Will. It's your document. You can do what you like with it.
How do I exclude someone from my Will? Do I need to say that they are specially excluded?
The simple answer is, if you don't want someone to receive a gift in your Will, don't give them anything in your Will. For example, you might leave everything to your children, which excludes your spouse, but sometimes you might need to go further than that. You might need to add a clause, for example, that says the gift to your children is still valid even if you marry your spouse. Or you might need to define who your children are if there's a particular child that you don't want to receive anything.
Do I need to give a reason?
It depends. The starting point is that you don't need to leave reasons for giving someone a gift in your Will, or for not giving someone a gift in your Will. But reasons might help if your Will is later the subject of a dispute. You just need to be conscious that your Will and other documents could become public if they filed in court, and also that your reasons might actually support the person's claim that being left out of the Will is unfair.
What can the excluded person do to challenge my decision?
The excluded person could challenge the validity of the Will or file a claim for further provision. Whether they're going to be successful, though, will depend on their financial position, their relationship to you, whether they were a beneficiary under the previous Will and a whole range of other circumstances, just depending on which claim they're filing.
Should I give them a small gift to make sure they don't challenge the estate?
It really does depend on your circumstances, but it's probably not a strategy we usually recommend. This would show that you haven't just completely forgotten about them, but it's unlikely to prevent a dispute altogether. Disputes about estates are expensive and in the end, the people that you do want to benefit from the Will could lose out. For this reason, it's really important to speak to a lawyer and make sure your estate planning strategy is perfectly in place. To arrange a meeting and to discuss your estate planning requirements. Give one of our team a call today.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.