Who must be included in your will

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When you create your will, you generally have what's called testamentary freedom to decide who you gift your assets to from your estate. However, testamentary freedom is not as free as it sounds.

The law imposes a notion of moral duty on all of us, asking who do you have a moral duty to provide for? And, have you provided adequately for them?

Answering these questions often isn't simple and won't be satisfied by leaving a notional amount for them purely to prevent them from contesting your will.

who must be included in your will

Who should you provide for?

Depending on what state you live in, the people you have a moral obligation to provide for may include your spouse, domestic partner, former spouse, former domestic partner and your children (including stepchildren and adopted children).

In certain circumstances, even grandchildren can contest a will.

When someone contests a will, there are a number of factors the court will consider such as:

  • your relationship with the person claiming,
  • the size and nature of your estate,
  • whether you were maintaining the person's lifestyle before you passed away,
  • the needs and resources of the person claiming.

If the court is satisfied the person making the claim has not been properly provided for, it may adjust who gets what in the will, to allow for this.

What happens when relationships break down?

Complications can arise when a relationship breaks down.

Many people aren't aware that, until a couple is divorced, and if a property settlement has not been finalised, the surviving former spouse will still be an eligible person.

This means they may be able to prove they are entitled to receive assets, even if they have been specifically excluded from a will after separation.

Formalising a property settlement and obtaining a divorce will usually prevent this.

As you can see, while you do have the freedom to gift your assets to whomever you like, the courts do have the power to change your wishes and the distribution of your estate.

How to avoid a potential claim on your estate

  1. Make sure you have a valid will, preferably drafted by a solicitor (even if someone can contest it, passing away with a will, is better than not having one at all).
  2. When preparing your will, consider who might be entitled to make a claim, and make adequate provision for them, where possible. Consider all circumstances, including the needs of the individual (eg: a child).
  3. Update your will to take into account any change in circumstances.
  4. If you are separated, make sure you remove your former spouse from your will, finalise any property settlement and obtain a divorce.

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Kimi Shah is a partner and head of the estate planning and wealth protection team at Kalus Kenny Intelex. She has significant experience in complex family estate planning including the importance of preserving wealth for future generations. Kimi holds a Masters of Applied Law in Wills and Estates, Bachelor of Laws, and Bachelor of Commerce in Commercial Law and Banking. She is a member of the Society of Trust and Estate Practitioners, and the global co-chair of the Estates and Trusts specialty group of the International Lawyers Network. She is also a contributing author of the Australian chapters of both the Mondaq Comparative Guide to Private Clients and the Lexology Private Clients Guide.

Josephine Sergi is the head of family law at Kalus Kenny Intelex. She has more than 15 years' experience in family law both as a lawyer and paralegal. Josephine holds a Bachelor of Laws (Honours), Graduate Diploma of Legal Practice and Masters of Applied Law (Family Law). She is a member of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, Victorian Women Lawyers, the Australian Italian Lawyers Association, and ALTO - Australian-Italian Leaders of Tomorrow. She is also a contributing author of the Australian chapter of the Lexology Private Clients Guide.