When we are talking to clients about preparing wills we are often asked whether it is possible to leave someone out of a will and do anything that can stop them from making a claim against the estate for a greater share.
Whilst a will is a document designed to reflect your wishes about what will happen to your affairs when you pass, the complete freedom to do with your assets as you want has been watered down by the family provision clauses now found in the Succession Act 2006 (the Act).
The Act gives certain persons the right to seek provision from someone’s estate. Broadly these eligible persons are:
· A spouse, including a person in a de-facto relationship
· A child
· A former spouse
· Someone who was wholly or partly dependent on the person and a grandchild or member of the household
· Someone in a close personal relationship
Being an eligible person does not automatically mean the person will succeed in a claim. They need to demonstrate a number of factors including that any provision was made and that they have a financial need. The Court will also look at factors that may reduce or cancel out any right to a share in an estate such as their behaviour towards the person who made the will.
There is, however, nothing that can be done to stop an eligible person from making a claim. A common misconception is that leaving a person an amount under a will prevents them from making a claim; the law looks at the adequacy of any gift, not whether one has been made at all.
This is not to say that you must or ought make provision for every eligible person in your will. There are strategies that can be taken to ensure your will has the best chance of surviving any claim. Our lawyers can discuss these with you when assisting you with the preparation of your will as well as providing more specific and detailed advice on these issues.