Warwick Gilbertson: Have you ever wondered whether you can exclude someone from your Will? Hi, I’m Warwick Gilbertson at Turnbull Hill Lawyers. I’m the Partner that specialises in Wills and Estates, and have been doing it for many years. I had a team that looks after these things for people.
Today, I want to deal with a question that I’m often asked. I’ll have someone who comes in and says, “I would like to leave my daughter, Mary, out of my Will. Can I do it?” The answer is, you can do a Will where you exclude anybody. The issue is, will that hold up going to the future and when I die? Commonly, an exclusion clause that you put in a Will where you say, “I will not provide for my son, Bill.”
It is an expression
of wish. I have seen Wills where people put in a sentence which says, “I
leave X dollars, say, $1,000 to my son, Bill, on condition that he does not
challenge my Will.” That is void against public policy. Most states of
Australia, indeed all states of Australia, have legislation which enables a
child to challenge a Will where they have not been adequately provided for. To
put in a clause which says what I just explained to you will be ineffective. In
many ways, it’s like saying to, Bill, your child, “Go for it. Challenge
me. I’ve said you can’t.” Remember, that when someone applies, your executors
apply for probate of your Will, what you have set out in your Will becomes a
People can get copies of it, so you know that your son is reading that document thinking, “Dad or mum said I’m not going to get anything, or I’m only to got to get X, whereas my brothers and sisters are getting far more than me. I’m being discriminated against.” It’s like rubbing salt into the wound. Not recommended. If you go to do something like that or wish to do it, you need very good advice. You need to remember that there is legislation where Wills can be what is called challenged on the basis of effectiveness and as to whether adequate provision has been made.
If you’re going to do that, you need aside from the Will to have prepared notes or completed information that is available to your executors, where you can set out the factual reasons why. But a word of caution. Your facts and your reasons are what I call a two-edged sword. You set out why you’ve done something and a court may receive that and say, yes, we understand that, but they also set out why you made that decision. If your child can prove that you were wrong in your factual understanding, then it is more likely that a court will interfere.
It is very
important to be realistic and to think about, “If I want my Will to stick,
should I need to do something that means providing for that child or that
beneficiary, which I really don’t want to?” Making sure that those who you
really want to get the rest of your estate don’t have to go through that
challenge and will receive what you are asking to happen. The discussion with
the solicitor at that time is not just what do I put in my Will and how it happens.
It is, how can I do it in such a way that I minimise
If you are interested to do that, if you would like to lessen the risk, lessen the chance of costs being incurred, talk to us at Turnbull Hill Lawyers. That’s what we know. We’re here to help you, and we could guide you through that process and advise you of the risks.