You can leave someone out of your Will in Western Australia, but you can’t stop them challenging it. The family provision laws let a spouse, a child and certain others ask the Court to overrule your Will and the Court can order provision for them out of your estate, regardless of what your Will says.
in this post, by disinheriting we mean cutting someone out altogether or leaving them less than an equal share.
Why would you disinherit someone?
There are often good reasons. Sometimes children become estranged from their parents. Sometimes a parent helps one child financially during their lifetime instead of leaving them a gift in the Will. Sometimes one child has done well and another hasn’t and an equal split isn’t what the parent thinks is fair.
None of those reasons are unusual and none of them are wrong. The problem isn’t the decision, it’s what happens to it after you die.
Who can challenge your Will?
The Family Provision Act 1972 (WA) sets out who is eligible to challenge a person’s Will. The list includes your spouse or de facto partner, your children and in some circumstances your grandchildren, parents, stepchildren and a former spouse receiving maintenance from you.
An eligible person can ask the Court to order provision out of your estate if your Will doesn’t make adequate provision for their proper maintenance, support, education or advancement in life. The Court looks at their financial position, their relationship with you, the size of the estate and the competing claims of the other beneficiaries. Being estranged doesn’t disqualify someone. It’s one of the things the Court weighs, but it’s not an answer in itself.
There is a time limit for bringing a claim, running from the date of the grant of probate or letters of administration.
How can you reduce the risk of a claim?
There is no way to guarantee your Will won’t be challenged, but there are things that make a claim harder or less worthwhile.
Give assets away during your lifetime. A family provision claim is made against your estate. An asset you no longer own when you die isn’t part of it. Be careful though – once given, a gift usually can’t be reclaimed and some gifts pay affect your pension, trigger duty or capital gains tax or can leave you short if your circumstances change.
Bring lifetime gifts and loans into account. If you’ve already helped one child, your Will can be drafted so that help is counted as part of their share rather than ignored. This is often the fairest answer and the easiest to explain, because the child hasn’t been cut out at all, in fact they’ve already received part of what you left them.
Leave a statement of reasons. This is a separate document explaining why you made the decisions you made. It doesn’t bind the Court, but it puts your side of the story in front of a judge who will otherwise only hear the claimant’s. Be careful with these and please get legal advice before you do so. These statements can sometimes aggratave a person who might not otherwise have made a claim.
What doesn’t work?
A clause saying your Will can’t be challenged has no effect. It’s not possible to contract out of the Family Provision legislation.
LIkewise, leaving someone a token amount isn’t sufficient to stop them complianing. A small gift doesn’t stop a claim and it doesn’t stop the Court ordering more.
Frequently asked questions
Can I leave my child nothing in WA?
Yes. Your Will can leave a child nothing. They remain eligible to bring a family provision claim and the Court can order provision for them out of your estate despite what your Will says.
Does an adult child have a claim if they don’t need the money?
Their financial position is one of the things the Court considers. A comfortable adult child is in a weaker position than one in genuine need, but comfortable doesn’t mean disqualified from bringing a claim.
Does a testamentary trust stop a family provision claim?
No. A testamentary trust protects an inheritance from a beneficiary’s divorce or bankruptcy after it passes to the trust, but it doesn’t take the assets out of your estate for the purposes of a claim.
What about my superannuation?
Superannuation is usually held by the fund trustee and doesn’t automatically form part of your estate, so it may sit outside a claim. Whether it does depends on your nomination and where the benefit is paid.
Get advice before you do any of this
Please don’t embark on any of the above without first getting advice from an estate planning lawyer. Every one of these options has consequences beyond your Will and the best time to work them out is before you act.
Book an appointment or call the Wills team on (08) 9220 4433.
Related: What are mirror Wills?
This article is general information and not legal advice.
