When you make a Will you want to know that your property will go to the people you want it to.  You can leave close family members out of your Will or recognise family members in unequal shares if there are good reasons for it, but the Will may be challenged as a breach of your duty to provide for those family members.

There are four main restrictions on doing what you want in your Will:

1.  There is a moral duty on the Will-maker to adequately provide for the proper maintenance and support of people entitled to provision from their estate.  These are:

  •  Their spouse, civil union partner or de facto partner;
  • Their children;
  • Dependent step-children;
  • Grandchildren; and
  • Parents (in special circumstances).

The duty to provide is not limited to those who need financial assistance. Many well-off claimants have received substantial payments from the estate for non-financial reasons, such as an acknowledgement of their place of belonging in the family. The amount of payment will vary in all the circumstances of the particular case.

2.  The law allows a person who has performed some service or work for the deceased in return for a promise of reward in the Will to claim from the estate. The work provided and the promise to reward the worker in the Will must be related to each other. The amount awarded will be confined to reasonable compensation for the work actually done for the deceased.

3.  The partner of a deceased person can claim a 50% share of his or her estate instead of receiving whatever they were left in the Will.  If the survivor of the relationship is not bound by a Contracting Out Agreement and is not adequately provided for in the Will then a claim for equal sharing can be made.

4.  The Will-maker must be of sound mind when making the Will and they must not have been unduly influenced or fooled into making certain provisions in the Will.

If you want to leave your property in a way that differs from normal it is important to tell your lawyer why and to provide good evidence to back up those reasons.  This will enable these reasons to be included in the Will, and for the Court to take those reasons into account if a claim on the Estate is made.