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  • Writer's pictureAmy Reed

What to consider if you leave an eligible person out of your will

Cutting someone out and keeping them out:

There are many reasons why you may choose to leave a person out of your will – family breakdowns, you may have already given an eligible person their entitlement throughout your lifetime and many more. Each family is different and each person will have different testamentary wishes.

So let us consider how you can prepare for a will and leave an eligible person out of it. It is important to remember, although you can prepare for this, there is no way to prevent an eligible person from making a claim against your estate. Although the Succession Act 2006 sets out the threshold for commencing proceedings in a family provision claim, the category of potential applicants is very broad.

The best thing to do is to be prepared and the best way to be prepared is to discuss your individual circumstances and reasons for leaving the person out of your will with your solicitor. The evidence your executor will need to support the circumstances as to why the person was left out of the will cannot be proved by anyone better than you. Taking more time throughout your estate planning process can save your estate a significant amount in defending a family provision claim. It is not particularly pleasant, it is not particularly comfortable but it is very important.

To ensure that your estate is best prepared to defend any family provision claims, you should consider the following:

  1. preparing a statement setting out the complete reason for leaving the person out of your will;

  2. liaising with the eligible person and explaining why they will not receive an entitlement. You may even reach an agreement with them as to disclaiming their interest; and

  3. ensuring that your executor understands the circumstances and can appropriately evidence the reasons why the person was left out of your will.

It is important to make sure that your will adequately anticipates why the person was left out. However, there is a careful balance between including necessary information and over doing it to the point your will is no longer valid.

If you have any questions about tailoring your will to prepare for leaving out an eligible person, the team at Jenkins Legal can assist you.



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