A testator can leave written reasons for why they have excluded potential beneficiaries from their Will, but whether those wishes will be accepted by the court in the event of a challenge depends on several factors, writes April Kennedy, Estate Litigation Senior Associate at Attwood Marshall Lawyers.
Introduction
The decision to leave somebody out of your Will is a significant one, likely fuelled by high emotions and past experiences that seem impossible to overcome.
For those that have experienced a relationship breakdown or have a “black sheep” that has been estranged from the family for many years, they may feel that their decision to exclude certain people from their Will, although justified, could still be contested in court.
One option to try and stave off the repercussions of such a challenge is to attach a written or video statement to your Will, explaining to the court the irreparable friction or breakdown in the relationship and why your decision to exclude certain people from benefiting from your estate should be respected.
Documented reasons can also affirm why the estate should go to your preferred beneficiaries. In justifying why a Will is set out the way it is, further explanations are often recommended when there is a strong belief that a Will may be contested.
The Supreme Court of New South Wales recently dealt with a case where two estranged stepdaughters claimed they were entitled to funds from their deceased stepmother’s estate. The stepmother anticipated the claim, and had left a note alongside her Will explicitly stating why the stepdaughters should remain cut out.
The court ultimately sided with the deceased’s wishes, and the judgment contains some important principles for how a court considers a testator’s written explanations.
The case: Plummer & Anor v Montgomery [2023] NSWSC 175
The deceased, Norma Plummer, left a signed written statement alongside her Will, dated April 2019, specifying that, in the event her Will was contested, she wanted the court to know she didn’t want her three stepdaughters to benefit in any way from her estate.
The note set out her reasons for cutting them out, including that they showed “intolerable behaviour” towards her while their father was sick in hospital, that they visited lawyers and demanded legal documents be changed into their names, and that their “constant complaints” and “interference” at that time caused Norma great mental stress and anxiety.
Norma’s Will had left her estate to her two biological children, Lisa and Stephen, as well as her granddaughter Emmy.
As Norma predicted, two of the stepdaughters ended up seeking a family provision order under s59 of the Succession Act 2006 (NSW).
(Read more about filing a family provision claim, including the eligibility criteria and strict deadlines involved, in our recent blog.)
The stepdaughters denied the conduct alleged in Norma’s reasons and put forward witnesses to testify how Norma had cared for them as teenagers.
However, the judge denied their provision claim, finding that their evidence was “self-interested” and fuelled by their feeling of entitlement. When their father died, the family home reverted to Norma and the girls did not receive anything from his estate.
The 3 March 2023 decision ultimately came down to the relationship that the stepdaughters had with Norma over the years, which the judge called “neither close nor loving.”
While the sisters had spent occasional weekends and school holidays with their father and stepmother throughout their teenage years, they had limited contact with the deceased in their adult years. There was virtually no contact after 2012 when their father moved into an aged care facility, and no contact after his death in 2016.
How a court takes written reasons into account
In some cases, judges have recommended that testators leave written reasons for excluding beneficiaries, as well as the reasons for leaving their estate to their chosen beneficiaries.
In the Plummer case, Justice Hallen said that the court should give “due weight” to the content of a written statement like Norma’s. That’s because it reveals the deceased’s attitude or beliefs and may cast light on their relationship with the people that are contesting the Will.
If a testator has considered potential claims on their estate to the extent that they are prompted to write a statement to further explain their wishes, a court must “show respect” to the judgment of that testator.
In terms of evidence, such statements are subjective and so need to be examined against the totality of the evidence that has been put before the court. This is mainly because the testator cannot be cross-examined, as they have already died by the time the written statement comes to light.
Case law states that testators are not allowed to condemn somebody from the grave. Instead, their comments draw attention to an issue that should then be aired and questioned in court proceedings.
Indeed, other judges have said that giving regard to such notes does not mean that such evidence suddenly takes on some higher status. The weight placed on the statement must depend on all the evidence, particularly that which contradicts it, Justice Hallen said.
Tips on giving written reasons
- The statement should be made in conjunction with the Will. It should be signed and dated.
- The statement should explain why the testator is choosing to exclude or reduce someone’s share in their Will, and, more importantly, it should explain why the testator is leaving their estate to the beneficiaries of their choice. The written statement should identify the positives as well as the negatives. If a capable testator can show, in their written reasons, that they have seriously considered the potential claims on their estate, then the court will regard the testator’s reasons more readily.
- Whilst written reasons or a statement are admissible in contested family provision proceedings, the testator should exercise caution when preparing such a document. The contents of the statement may inadvertently assist the person making a claim on the estate (by providing them with the evidence needed to overcome any hurdles in their claim).
We strongly recommend that any written reasons are prepared with the assistance of a lawyer, and they should be reconsidered, updated or reaffirmed whenever the testator’s Will is updated.
Attwood Marshall Lawyers – Experts in Estate Litigation and Succession Law
Disputes over Wills and Succession Law can be highly complex. When someone makes a family provision application, many difficult and emotional issues are bought to the surface. If you are involved in a dispute over an estate, it is important to find the right lawyer to guide you through the process so that you can achieve your desired result and move on with your life.
At Attwood Marshall Lawyers, we have a dedicated Estate Litigation team that practice exclusively in this complicated area of law. To discuss an estate dispute, please contact our office with any enquiries by calling our Estate Litigation Department Manager Amanda Heather on free call 1800 621 071, direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au.
You can take steps now to try and save your loved ones from legal challenges after you pass away. A carefully crafted estate planning strategy to avoid claims can save you and your family a lot of anxiety and ultimately, legal costs. For all your Will-drafting needs, please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
