Statutory Declaration as to Statement of Reasons for Disinheriting a Relative

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A Statutory Declaration is the best you can do to have the Court consider your reasons

The Court may in its discretion make a Family Provision Order against your stated wishes even if your reasons are found to be truthful.

There are two reasons for this:

1️⃣ The Court's power to refuse relief is discretionary; and

2️⃣ Reasons which you may regard as adequate might not satisfy the Court that the person concerned should be disentitled or even have her or his benefit reduced.

⚖️ Every case will turn on its individual circumstances, and the discretion of the Court.

Regardless, a testator cannot do more to add weight to a Statement of Reasons for Disinheriting a Relative than to place it in a Statutory Declaration.

Sufficient Reasons

The following are examples from past Australian Court cases of reasons which were held to be sufficient:

✅ Chronic drunkenness has been held sufficient, but not in all cases.

✅ Adultery was held in 1929 sufficient, but not in more recent cases where the adultery was condoned by the deceased, or where the deceased also engaged in adultery.

✅ Evidence the the dependent has blackmailed the testator has been held sufficient.

Insufficent Reasons

The following are examples from past Australian Court cases of reasons which were held to be insufficient:

❌ Fear that the dependent will squander the inheritance.

❌ As to estrangement, it is best to seek legal advice, however the starting assumption should be that estrangement by itself will likely be insufficient.

❌ Conduct causing the plaintiff and the deceased parent loss (for ill-advised litigation).

Not recommended to Form Part of the Will

It is not recommended to place this Statutory Declaration as to Statement of Reasons for Disinheriting a Relative in the Will.

This Statement of Reasons can be documented separately.

The Will, after probate is granted, is a public document, and including this Statutory Declaration as to Statement of Reasons for Disinheriting a Relative in a Will may embarrass the family.

If the purpose of the Statement of Reasons document is to counter a possible future Family Provision Claim, then if Probate is granted and no such claim is ever made, the reasons will have been made public for no reason.

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