Key Practice Areas
Excluding a Beneficiary from a Will - Some Points to Consider
Tuesday, April 1, 2019
A person making a will in Queensland can give instructions to their lawyer about who they want to leave their estate to and also who they do not want to leave their estate to.
If you look at our free Will Information Pack (available by request here: Request a Will Info Pack), you will see that it contains a section where the will-maker can expressly name a person who they are not leaving any part of their estate to, and can give an explanation why that person is not to be included as a beneficiary of their will.
The will-maker can also name a person who they are making a reduced gift to, and the reasons why they are doing that.
A common example of a reduced gift is when a parent is leaving one child (say) $100,000 from their estate but is only leaving the second child $50,000 with the explanation that they have previously given $50,000 to the second child to assist that child perhaps to buy a house. So the will makes a balancing of what the will-maker’s children receive. A will including a reduced gift clause might also include a clause stating that the will-maker forgives a debt owed by the second child to the will-maker. This amounts to an instruction to the executor not to recover money owed from the second child because a financial adjustment has been made in the will.
A more drastic scenario arises when the will-maker gives instructions that they are leaving nothing to a child; and the reasons for this can be widely varied. A common example is that the will-maker and the adult child have not had contact with each other for many years.
A lawyer receiving instructions to exclude a child as a beneficiary, or to leave a significantly reduced gift to a child, will inform the will-maker of the risk that the child might contest the will. However, if the will-maker is clear in their instruction to exclude or reduce a benefit to a child, then the lawyer must act on those instructions. While the will-maker has the right in their will to exclude or reduce a benefit to a child, that might not be the end of the matter. An excluded child, or a child receiving a reduced benefit from the will-maker’s estate, could decide to file a claim for further provision from the will-maker’s estate, or to claim that the will-maker lacked capacity at the time they gave their will instructions, or that someone unduly influenced the will-maker.
It will be the role of the executor to uphold the will-maker’s instructions and to present to a court any available evidence showing why the will-maker’s instructions to exclude or reduce a benefit to a child should be upheld, but there is no guarantee that the will-maker’s wishes will be upheld by the court. This type of litigation is expensive and a will-maker should carefully consider the potential financial losses to their estate if they provide a reduced benefit to, or completely exclude a child as, a beneficiary of their estate.
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