Can I exclude a child from Your Will?

Can I exclude a child from my Will?

In New South Wales, it is legally possible to exclude a child from your will. However, doing so is not always straightforward. Under the Succession Act 2006 (NSW), a child may be entitled to make a claim for provision against a parent’s estate. Even if you have personal or financial reasons for excluding them, the Court generally expects a parent to make adequate provision for a child’s maintenance, education, and advancement in life.

Understanding the risks of exclusion

Excluding a child from your will can be challenged through seeking a family provision order from the Court. In such cases, the Court will consider factors such as the child’s financial needs, relationship with the deceased, contributions to the estate, and the size of the estate itself. If the Court determines that the child has not been adequately provided for, it may order that provision be made from the estate, even against your expressed wishes.

Strategies to reduce the risk of a successful claim

If you feel strongly about excluding a child or providing them with only limited provision, there are several legal strategies that may reduce the likelihood of a successful claim:

1. Leave them something, even reluctantly.
   Providing a child with a modest gift in your will can sometimes deter them from making a claim. The more you leave, the less incentive they may have to challenge your estate.
2. Have them sign a release of their right to challenge your Will.
   This process requires Court approval and will only be granted if the Court is satisfied that:
   • It is to the child’s advantage, financially or otherwise, to make the release.
   • It is prudent for the child to make the release.
   • The provisions of the release agreement are fair and reasonable.
   • The child has received independent legal advice and has had time to consider it.

   This approach can be effective but must be handled carefully to meet the Court’s strict requirements.

3. Sign a statement explaining your decision.
   A professionally drafted statement, often called a Section 100 statement, can set out why you have made limited or no provision for a child. While this does not prevent a claim, it can be valuable evidence in defending your decision if the matter goes to Court.

Why professional advice is essential

Every family situation is unique. The reasons for excluding or limiting provision for a child can range from estrangement and past financial assistance to concerns about financial irresponsibility. However, the law in NSW places a strong emphasis on ensuring dependants are adequately provided for.

Before making this decision, it’s important to seek advice from a solicitor experienced in wills and estates. They can assess your circumstances, draft your will in a way that minimises risks, and advise on additional steps — such as trusts, lifetime gifts, or appointing a professional executor — to protect your estate from disputes.

Final thoughts

While it is possible to exclude a child from your will in New South Wales, the decision should be made with careful consideration of the legal consequences. By taking strategic steps and seeking expert legal guidance, you can reduce the likelihood of costly and stressful disputes after your passing.

At Maurice Buckely. CT Poole & Son, our experienced  Wills and Estates lawyers can help you prepare a legally sound Will, advise on minimising the risk of claims, and ensure your wishes are respected. Contact us today for confidential advice.