Disinheriting a family member in your will is a serious decision that must be handled carefully to avoid legal challenges. In New South Wales, while you generally have the freedom to distribute your estate as you see fit, certain family members have the right to challenge a will if they believe they have not been adequately provided for. Explicitly stating your intention to disinherit a family member and providing clear reasons can help minimize the risk of legal disputes. This guide explores the legal framework around disinheritance, the steps you should take to ensure your wishes are respected, and provides a real-life case study to illustrate the potential consequences of failing to adequately address disinheritance.
Under Australian law, including the laws in New South Wales, a testator (the person making the will) has the right to disinherit any family member, including children, spouses, or other relatives. However, this right is not absolute. Disinherited family members may challenge the will under the Succession Act 2006 (NSW) if they can demonstrate that they have not received adequate provision for their maintenance, education, or advancement in life.
The following individuals are eligible to make a family provision claim under the Succession Act 2006 (NSW):
Disinherited family members can challenge a will on several grounds, including:
To disinherit a family member effectively, explicitly state your intention in your will. Use clear, unambiguous language to identify the person you are disinheriting and clearly indicate that they are to receive no share of your estate. This makes your intention evident to anyone who reads your will.
While you are not legally required to provide a reason for disinheritance, doing so can help prevent legal challenges. Explaining why you have chosen to disinherit a particular person can demonstrate that you made the decision consciously and with full awareness. Be cautious about the language you use, as defamatory or inflammatory reasons may create additional legal complications.
Include a no-contest clause (also known as an "in terrorem" clause) in your will. This clause states that if a beneficiary challenges the will and loses, they will forfeit their inheritance. While this may not completely prevent a legal challenge, it can deter frivolous or speculative claims.
To reduce the risk of a challenge, consider making a nominal provision for the person you wish to disinherit or setting up a trust with limited access. This shows that you considered them but chose to limit their benefit, which may make it harder for them to argue that they were not adequately provided for.
Disinheriting a family member is a complex legal issue. Consulting with an experienced estate planning lawyer can help ensure that your will complies with all legal requirements and minimizes the risk of challenges. A lawyer can also help draft your will in a way that clearly reflects your intentions and addresses potential legal issues.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
A recent case in New South Wales illustrates the potential consequences of failing to explicitly state disinheritance in a will. This case highlights the financial and emotional impact on the family and the importance of clear and explicit language in estate planning.
Estate of White [2023] NSWSC 900: Robert White, a retired businessman, passed away leaving a will that divided his $6 million estate among his two children and a charitable organization. Robert had a strained relationship with his estranged son, David, and intended to leave him out of his will. However, the will did not explicitly state this intention, nor did it provide any reason for David's exclusion. David challenged the will, claiming that he had been unfairly disinherited and that his father lacked testamentary capacity when making the will.
Robert’s daughter, who was named as the executor, defended the validity of the will. She described in court how her father had explicitly told her about his decision to exclude David due to their strained relationship. Her voice was filled with emotion as she recounted her father’s disappointment in his son's behavior and his repeated statements about his wishes. She pleaded with the court to respect her father’s intentions, feeling both anger and desperation at the challenge.
David, however, argued that his father had been manipulated by his sister and was not of sound mind when the will was made. He expressed his sense of betrayal and frustration at being excluded from the inheritance, claiming that he had always been an important part of the family until recent conflicts. His voice trembled with a mix of hurt and anger as he described his feelings of abandonment and injustice.
The Supreme Court of New South Wales was required to determine whether Robert's will accurately reflected his intentions and whether David had grounds for a family provision claim. The legal process included:
The legal battle over Robert's will resulted in substantial financial costs. Legal fees and court expenses totaled over $400,000. Additionally, the estate’s assets, including a property valued at $2.5 million, had to be sold to cover the costs of litigation. The ongoing dispute caused further financial losses due to delays in asset distribution and administrative expenses, reducing the overall value of the estate by an additional $300,000. The total financial impact on the estate exceeded $700,000, significantly reducing the inheritance available to the intended beneficiaries and the charitable organization.
The Estate of White case underscores the importance of explicitly stating your intention to disinherit a family member in your will. Clear and precise language, professional legal advice, and a well-drafted will can help minimize the risk of challenges and ensure that your wishes are respected. Disinheriting a family member is a complex decision that requires careful consideration and legal guidance.
Government Resources:
Non-Profit Organizations: