Know Your Obligations When It Comes To Your Will and Your Family

1. Drafting your Will

Writing a will is crucial as it provides you with reassurance about who will attend to your affairs upon your death and gives you the opportunity to decide the manner in which your assets will be distributed. Most of us understand that we have the freedom to leave our assets to whomever we choose. While this is correct in theory, there are certain conditions that that must be met before a will can be distributed as you wish. These conditions are that:

1. You fully understand your Will;
2. You made the Will freely (without duress or undue influence by others);
3. You do not have any obligations to provide for others; and
4. You are disposing of assets you are entitled to give away.

Many people may be unaware that they are required by law to provide certain family members in their Will. So if you wish to cut someone out of your Will, there are some important points to consider first. Primarily, if you do not wish to include a spouse or child in your Will because you haven’t seen them for many years, or your relationship has broken down, you may still have an obligation to include them in your Will.  

2. Who you are required to provide for in you Will (perhaps despite your wishes) and who can make a claim on your estate

The following individuals could make a claim against your estate if they have not been included in your Will:

1. A spouse or domestic partner;
2. A child/children (including stepchildren) whether they are adult or child;
3. A child whose parentage may not yet be proven;
4. A former spouse or partner who is or would be able to commence proceedings pursuant to the Family Law Act but has been prevented from doing so because of your death; and
5. A member of your household at the date of your death.

If any one of the individuals listed above makes a claim on your estate, they must be able to prove that you had a moral duty to provide for them and that by excluding them from your Will they have been left without adequate provision for their maintenance and support. If such a claim reaches court, the court will consider a variety of factors prior to making a ruling on the matter. Such factors would include, but are not limited to:

1. The terms of your Will;
2. If your Will explicitly excluded an individual and what (if any) reasoning was provided;
3. The nature of your relationship with the claimant and any other competing relationships;
4. Any responsibilities you had to the claimant;
5. The size of your estate and your bequests to others; and
6. The age, financial position, health and character of the claimant.

 

3. What you can do to prevent a claim on your estate

If there is someone you wish to exclude from your will, we strongly recommend that this is explicitly stated in your Will along with a clear explanation as to why. This is because there is a greater chance of your Will being administered as you wish if any contentious terms have already been clearly addressed as it shows you have considered the matter already and take this course of action deliberately. Leaving signed detailed notes with your solicitor to accompany your Will also provides further evidence to help to prevent a successful claim in the future. It is also worth mentioning that we do not advise that you leave a token amount to a dependant beneficiary to try and circumvent these requirements. This is because if a claim was made, the court would take into consideration all relevant elements of the case (as mentioned above) and would likely override your wishes if they find that the beneficiary is entitled to inherit more than you provided.  

4. Advising your beneficiaries if you think your distribution will be unexpected

We recommend that you advise your beneficiaries in advance if you anticipate that the terms of your will may be unexpected for some beneficiaries. We recommend this so as to avoid any ugly disputes or shocks your family may suffer following your death.  

Summary

Despite your wishes, you may be required to provide for certain family members in your Will. If you wish to cut someone out (who would otherwise be expecting to inherit) we strongly recommend this is written into your will and that you make your reasons known in advance to prevent any claims on your estate after your death. If you or someone you know is considering writing a Will or would like more information or advice, please call Grant Mackenzie on 03 9480 1155 to discuss the options or make an appointment to see him.

Grant has been a partner at Phillips & Wilkins since 1990 having joined the firm in 1983. He is a member of the Law Institute of Victoria Elder Law Committee. Learn more about Grant's legal experience.