Can You Cut Someone Out of a Will?

Can You Cut Someone Out of a Will?

by Jacqui Brauman

In today’s blog post, we tackle the intriguing question of whether you can cut someone out of a will. The answer is yes. However, like anything in life, there are some important considerations to keep in mind.

Let’s start with a concept called testamentary freedom. In Australia, we have the right to create a will that reflects our desires and wishes. This means we can essentially dictate who receives what from our estate after we pass away. It’s a powerful freedom, one that not all countries enjoy.

In some nations, legislation mandates that a certain percentage of someone’s estate must be transferred in a particular manner, leaving little room for personal choice. This limitation on testamentary freedom can be quite restrictive. Thankfully, we don’t face such restrictions in Australia, but there are some conditions we must navigate.

As a society, we hold the belief that we have obligations to certain individuals in our lives. These obligations extend to our spouse, children, and anyone who is financially dependent on us. Consequently, if we fail to meet these obligations in our will, someone can legally challenge it.

About seven years ago, the law underwent a notable change in this area. In Victoria, for instance, there used to be a broad range of people who could potentially make a claim, even distant relatives like nephews and nieces, helpful neighbors, friends, or caretakers. However, that has changed, and now only those individuals to whom we hold significant obligations can contest a will.

Therefore, if you wish to cut someone out of your will, it’s essential to understand the associated risks should that person fall within the category of those who may claim. For example, if you’re considering excluding a child, my recommendation is not to leave a token gift or a nominal amount, as it can raise suspicion and provoke a potential legal battle.

In such cases, it’s better to include a clause in your will explicitly stating that you have consciously made the decision to exclude this person, fully aware of the potential risks and consequences. Further, it may be helpful to provide additional reasons in a separate letter addressed to your executor. Should a claim arise, your executor can leverage this documentation as direct evidence of your intentions and thought process.

Among the reasons why this approach is advisable is that, unfortunately, you won’t be around to defend your decision if a claim is made after your passing. While your executor will do their best to protect your wishes, having your own words as guidance and justification can be invaluable. It adds clarity and eliminates any ambiguity or potential uncertainty that may arise from hearsay or assumptions.

If you’re interested in understanding more about the topic of claiming against a will, I invite you to watch some videos I’ve previously shared on our Facebook page. They provide insights into the factors courts consider when evaluating the legitimacy of a claim.

In conclusion, if you’re in the process of creating your will and find yourself wanting to exclude someone, the answer is yes, you can. However, I encourage you to carefully consider the individuals falling within the obligated categories, provide reasons for your decision, and do your homework to support your executor in the future, should the need arise.

Planning your will demands thorough reflection and consideration to ensure your wishes are carried out as intended.

If you need further assistance or have any legal inquiries related to wills, our team at TBA Law is here to help. Our knowledgeable professionals can provide guidance and support to ensure your will is comprehensive, legally sound, and aligned with your intentions.

Call 1300 043 103 or send an email to admin@tbalaw.com.au.