Can I Exclude Someone From My Will?

The short answer is yes.

As a testator or testatrix (will maker), you have absolute discretion to leave your belongings to whomever you choose. You are also free to exclude whomever you choose.  However, excluding a family member brings with it inherent risks.   

 If you are considering excluding someone from your will you should seek legal advice as to what exactly those risks are. This note can assist you to determine the available grounds to contest a will, the likelihood of a claim and a law firm can identify additional possible legal issues.

Why might you wish to exclude someone from your Will?

There are many reasons to exclude someone, including:

• you have recently divorced;
• you are estranged from a child;
• a death has occurred in the immediate family;
• a child has remarried or had another child;
• a family member is no longer dependant on you financially;
• in fear that an estranged family member will contest your will;
• a separation has occurred.

Although a will contains your wishes and you may have a valid reason to exclude a person from your will, your will can be challenged or contested in the Supreme Court of Western Australia. A challenge of your will may cause conflict and delay of the administration of your estate and with other distributions owning to beneficiaries.

The next relevant question is, who can challenge or contest my will?

Who can challenge or contest my Will?

The people that are eligible to challenge or contest a will are outlined in the Family Provision Act 1972 (WA). They are:

• legal partners;
• de facto partners;
• your biological children, adopted or stepchildren (even estranged children);
• a separated partner who is still receiving spousal maintenance from you;
• grandchildren;
• guardians of your children;
• someone who is financially dependent on you.

In Western Australia, if you have either married or divorced and have not drafted a new will, pursuant to the Wills Act 1970 your previously drafted will becomes invalid, unless the will has carefully been drafted in contemplation of the marriage or divorce. 

How can someone contest or challenge my Will?

Persons looking to challenge or contest a will can do so on certain grounds. They must be able to show that adequate provisions were not made for their proper maintenance and support and that the will maker has a moral or financial duty to do so.

Some of the reasons a person can contest or challenge a will are:

• lack of mental capacity of the will maker;
• the will maker was coerced into drafting a will;  
• a person was left out of the will due to mistake;
• a person was not catered for where the will maker had a moral obligation to provide for them;
• a person was financially dependent on the will maker;
• a subsequent will has been found.

Case Law – adequately provided for  

The complex estate case of the estate of the late Australian Prime Minister, Bob Hawke, is a good example of how a will can be contested where a family member feels they have not been adequately provided for. This matter was brough to the New South Wales Supreme Court in January of 2020 by the late Mr Hawke’s daughter Rosslyn Dillion. Mrs Dillion was eligible to bring an action as a daughter, by way of a Family Provision Act claim. Mr Hawke left his $18 million estate to his second wife and gifted $750,000 to each of his children including his stepchild. Mrs Dillion claimed that her late father did not provide adequately for her in his will.

Mrs Dillion brought a claim to seek $4.2 million of Mr Hawke’s estate as she believed that the $750,000 she was gifted, did not meet her living expenses as she explained she was a woman reliant on welfare due to struggles with depression, anxiety, post-traumatic stress disorder and agoraphobia. The matter was settled at a private meeting.  

Case Law - capacity

In the recent case of Diedler v Borowiec¹, the Supreme Court of Western Australia heard a matter where the Deceased’s mental capacity was the issue of contention.

This matter involved a Polish man who migrated to Australia in 1949 and who demonstrated what can be perceived as mental capacity, in that the man lived independently and he looked after his own finances. The Deceased created wills in 1981, 2014, 2017 and 2018. 

An application was brought to the court in September 2019 by the Deceased’s daughter for letters of administration, the Deceased’s daughter argued that the later wills of the Deceased were invalid due to his mind being affected by delusions.

The daughter claimed that the Deceased believed that she was a “witch” who was trying to poison him and had flown through his window to steal from him. The Deceased also harboured a delusion that his son had tried to poison his coffee in 2014.

The well-known prerequisites for establishing legal capacity include a comprehension on the part of the will-maker of all those persons who have a reasonable claim to receive part of their estate.

The court found that the Deceased was in fact delusional in his creation of the later wills and in his beliefs surrounding his children which lead to him excluding his children as beneficiaries and the wills were found invalid.

How do I reduce the risk of challenges to my estate?

Although a law firm can assist with correctly drafting your will to exclude a person, it will not eliminate a potential challenge.

If you are looking to exclude a person from a will, we would suggest that you seek legal advice from a lawyer for its drafting.

If are interested in drafting a will or would like some advice regarding estate planning, please contact Iain Freeman or Kerri Evangelista on 9288 6000.