Can You Exclude an Estranged Child from Your Will?
Many people wish to create a will that ensures their assets are distributed according to their wishes. However, some may want to exclude certain family members, such as an estranged child, from inheriting any part of their estate. While you can choose to leave a child out of your will, it is important to understand that they may still have the right to challenge your decision.
Can an Estranged Child Inherit Even If They Are Left Out of the Will?
Under Victorian law, certain individuals, including children, are considered "eligible persons" who may contest a will if they believe they have not been adequately provided for. This falls under Part IV of the Administration and Probate Act 1958 (Vic), which governs family provision claims. If a claim is made and the court finds that the child was unfairly excluded, they may be awarded a share of the estate.
Steps to Reduce the Risk of a Successful Challenge
If you want to leave an estranged child out of your will, consider taking the following steps:
Clearly Document Your Reasons – Provide a written explanation for excluding the child. This can be included in the will itself or in a separate document, such as a statutory declaration or letter of wishes.
Consider Their Financial Circumstances – The court may take into account the financial needs of the estranged child, including their health, education, and overall wellbeing. If they are in financial hardship, the risk of a successful claim increases.
Ensure Your Will Is Legally Sound – Engaging a lawyer to draft your will can help minimise potential challenges by ensuring the document is clear, valid, and in compliance with legal requirements.
Explore Alternative Strategies – Some testators consider transferring assets outside the estate, such as through trusts or joint ownership arrangements, to limit what can be challenged in a will dispute. However, legal advice is essential to ensure these strategies are effective.
Seeking Legal Advice
If you are considering excluding a child from your will, it is crucial to obtain legal advice to understand your options and reduce the likelihood of a dispute.