Broadly speaking, an eligible person may include anyone to whom the testator has a responsibility, potentially including a current or former spouse or de facto partner, children, grandchildren, other dependants and persons living in the testator's household.
When the testator dies, any "eligible person"may make an application to the court for a family provision order if they believe that there has been inadequate provision for them under the Will.
If an order is made, interests under the Will may be adjusted and the applicant may be able to obtain part of the estate contrary to the express provision of the Will.
There is no guarantee that any particular reasons for excluding an eligible person will be acceptable.
Whilst the likelihood of a successful family provision orders may be reduced by expressly excluding people who may be eligible persons in the Will and providing clear reasons why they have been excluded.
A Court will take into account all of the facts and circumstances.
The following are some examples of reasons that may potentially be considered valid:
🧩 Sufficient provision was made for the excluded person during the testator's lifetime such that further gifts would be unfair to the included beneficiaries;
🧩 The testator and the excluded person have had no contact for a long time and no relationship of love/affection exists between them;
🧩 The testator has not had any responsibility for the welfare of the excluded person for many years;
🧩 The financial circumstances of the excluded person are much better than those of the included beneficiaries and the excluded person is being excluded in order to try to achieve a balance of financial welfare amongst all potentially interested parties; and/or
🧩 The excluded person has received, or is likely to receive, significant assets from the estate of another person (eg, a former spouse of the testator, a former spouse of the testator's spouse, etc).
Please note: The Will becomes a public document pursuant to the Court Probate process, consequently any reasons articulated for excluding an eligible person will ultimately be made discoverable by the public.
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.