Making Your Last Wishes Clear: Understanding Your Right to Exclude a Child from Your Will

Introduction

In estate planning, ensuring that your last wishes are clearly expressed is essential. While this can be as simple as outlining your burial wishes or your funeral arrangements, it is paramount when it comes to the division of assets, the bequeathment of properties and who is to be included, or excluded, from the Will itself. One particularly sensitive topic is the exclusion of a child from your Will, which can lead to legal contests, ongoing court cases, and family disputes. In this article, we outline some of the key considerations if this is a path you are looking to take. 

The Legal Right to Exclude a Child from Your Will

Testamentary freedom forms the basis of Australian estate law, allowing individuals to distribute their assets as they see fit. In order to exercise this right, a valid Will must be created, adhering to the legal requirements outlined in relevant legislation. These requirements include being of sound mind at the time of creation, having the Will in writing, and signing it in the presence of two witnesses who are not beneficiaries. There are a number of ways that you can create a Will, however engaging a reputable solicitor ensures that all relevant legislation is adhered to and requisite steps are taken to make sure the Will is valid and available following a death.

When a death occurs intestate, or without a valid Will, a spouse or children are the primary beneficiaries, however it is not required by law that they are included or given preference when a Will is created. That said, it is important to note that testamentary freedom is not absolute. Various limitations exist to protect eligible persons from being left without adequate provision, and courts are able to reallocate the distribution of assets in an Estate should sufficient evidence be provided or arguments made. For example, Family Provisions allow a child (including an adult child) to potentially challenge the Will if they believe they have not received adequate provision from a parent’s estate.

Reasons for Excluding a Child from Your Will

There are a myriad of reasons someone chooses to exclude a child from their Will, including estrangement, pre-existing financial arrangements, or concerns about the child’s ability to manage their inheritance. Even though these reasons may be a seemingly logical choice for those immediately impacted, it is crucial to document the reasons for exclusion within the Will, such as in a letter to your Executor. This provides transparency and clarity to interested parties, and can help a court to make a decision which is most inline with the deceased’s wishes should the Will be contested.

Failure to clearly document the reasons for excluding a child can lead to further legal complications. In the absence of an explanation, the excluded child may be more likely to challenge the Will, alleging inadequate provision or lack of testamentary capacity on the part of the testator. Straightforward and uncomplicated documentation can help defend the testator’s decision in such circumstances, helping ensure that your wishes are respected.

Alternatives to Disinheriting a Child

Disinheriting a child is not the only option for estate planning – there are multiple alternative methods that can help achieve similar goals. Providing a modest legacy or specific bequest to an excluded child can help ease the process; acknowledging their relationship while minimising their entitlement can provide a consolatory effect, while establishing trusts, life insurance policies, or making inter vivo gifts (those made during one’s lifetime rather than posthumously), can be used to redistribute assets outside the Will, providing an individual more control over the allocation of their assets prior to their death.

Each option has its own benefits and drawbacks, with the suitability ultimately depending on individual circumstances. Gifts can have their own run-on ramifications for the receiver, including tax implications, de facto claims and in the event of a breakdown of a marriage. We’ve provided a full overview of this in our blog Gifts of Money or Inheritance Received During a Marriage or De Facto Relationship. Consulting a legal practitioner at Maguire & McInerney on the best course of action for your particular situation is always a wise decision. Their expertise and experience in the industry means that they are uniquely well placed to advise on successful pathways and offer you practical outcomes. 

Conclusion

Understanding your right to exclude a child from your Will is crucial in ensuring your last wishes are respected. While testamentary freedom is a fundamental principle in Australian estate law, it is subject to limitations, and when choosing to exclude a child, it is important to document the reasons clearly within the Will to minimise the risk of legal challenges. Exploring alternative estate planning tools may provide a more comprehensive solution, but seeking professional legal advice is always recommended to navigate the complexities of Wills and estates effectively, and to ensure your intentions are legally valid and enforceable.

At Maguire & McInerney, we understand the importance of safeguarding your estate and assets, and ensuring they are distributed according to your wishes. With dedicated teams specialising in Wills, estate planning, and family law, we have the expertise to provide you with comprehensive support. Our specialist solicitors have decades of experience and are ready to guide you through the process, advising on the most suitable approach and assisting with the necessary documentation. 

Remember, estate planning is a sensitive matter, and professional guidance Will help you navigate the process with clarity and confidence.

Important Disclaimer: The material contained in this publication is of general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.