When making a Will, a testator has the freedom to decide who they wish to benefit from their estate and who they wish to exclude from their estate. This exclusion can be explicitly stated through an exclusion clause, which specifically identifies the person or persons to be excluded.
While exclusion clauses serve as a mechanism to express the testator’s wishes, they do not guarantee absolute protection against legal challenges, particularly from ‘eligible persons’ who may contest the Will. Under the Succession Act 2006 (NSW), eligible persons include:
- a spouse or former spouse of the deceased;
- a de facto partner of the deceased;
- a child of the deceased (including stepchildren and adopted children);
- a person who is dependent wholly or partly on the deceased;
- a grandchild of the deceased;
- a person with whom the deceased was living in a close personal relationship at the time of death.
A person who has been excluded from a Will retains the right to contest its validity. However, their likelihood of success relies on several factors, including the nature of their relationship with the testator, their dependency on the testator, the value of the estate, their financial situation, whether they were a beneficiary under a previous Will, and evidence of the testator’s intentions to exclude them.
Therefore, to strengthen the validity of an exclusion clause and ensure that the testator’s wishes are honoured, it is important to document the reasons behind excluding any eligible person. This can be achieved through writing a letter to the executor that clearly outlines the rationale behind the exclusion. This can assist the court to understand the position of the testator and reach decision that best aligns with the testator’s wishes.
At Adams & Partners Lawyers, we can assist any client to ensure that their testamentary wishes are upheld. If you need any assistance in drafting your Will or have any questions about excluding someone from your Will, please give us a call on 02 4721 6200.
Written by April Miles
