If you are making or updating your Will and intend to leave a child, former spouse, de facto partner or another person out of your estate, you may be concerned about what happens after your death.

In NSW, certain people may be entitled to make a family provision claim if they believe that your Will does not make adequate provision for their proper maintenance, education or advancement in life.

A carefully prepared section 100 statement can be an important part of your estate planning where you anticipate such a claim.

What is a Section 100 statement?

Section 100 of the Succession Act 2006(NSW) deals with statements made by a deceased person about their testamentary intentions.

A person making a Will can leave a statement explaining their reasons for making particular provisions in their Will — including why they have decided to make little or no provision for someone who might otherwise expect to benefit.

The statement does not replace the Will. Instead, it can provide evidence of your intentions and the circumstances surrounding your decisions.

This can be particularly important where you anticipate that someone may challenge your estate after your death.

Who might make a family provision claim?

The law does not only apply to children. Depending on the circumstances, an eligible person can include a spouse, de facto partner, former spouse, child, a person who was dependent on the deceased, certain grandchildren and a person who was living in a close personal relationship with the deceased.

The Supreme Court of NSW confirms that family provision applications can be made by eligible persons who say they have received inadequate provision from an estate. An application generally needs to be made within 12 months of death, although the Court can consider an application for an extension of time.

Simply stating in your Will that you do not want someone to receive anything does not necessarily prevent that person from making a claim.

What should the statement contain?

There is no simple formula that applies to every estate.

A solicitor may discuss your family circumstances and ask you questions about your relationship with the person you intend to exclude. The statement might address matters such as:

• your relationship with the person;
• the history and duration of that relationship;
• financial assistance or gifts you have previously provided;
• the person’s financial circumstances, if known;
• any particular circumstances affecting your decision;
• your obligations to other family members or beneficiaries;
• your reasons for making different provisions for different people; and
• why you consider the provisions in your Will to be appropriate.

It is important that the statement is accurate, considered and proportionate.

It should not simply become a list of grievances or an attack on the person you have decided to exclude.

Can a Section 100 statement prevent a family provision claim?

No. A Section 100 statement does not prevent an eligible person from bringing a family provision application. Nor can you guarantee that the Court will uphold your wishes simply because you have explained them in writing.

The Court considers a range of circumstances when deciding whether to make a family provision order. Section 60 includes matters such as the relationship between the applicant and deceased, the size and nature of the estate, the financial circumstances of relevant people, contributions made to the estate or family, provision previously made during the deceased’s lifetime and evidence of the deceased’s testamentary intentions.

A properly prepared statement can therefore be relevant evidence, but it is only one part of the overall picture.

Be careful what you put in the statement

A statement prepared today may be examined years later, after you have died.

If a family provision claim is brought, the statement may become relevant to understanding your intentions and the circumstances in which your Will was made.

That makes careful drafting important. Statements that contain exaggerated allegations, unnecessary personal information or assertions that cannot be supported may create difficulties rather than solving them.

Your solicitor should also consider whether there are other estate-planning measures that need to be addressed alongside the Will and Section 100 statement.

Planning ahead can make a difference

If you are considering leaving a child or another potential beneficiary out of your Will, it is worth obtaining legal advice before simply signing a Will containing an exclusion.

The objective is not to try to make a future family provision claim impossible. Rather, careful estate planning can help ensure that your wishes, the reasons behind them and the circumstances of your family are properly documented.

Here to Help

Contact Mid Mountains Legal now for free, no-obligation telephone advice about your Will, excluding a potential beneficiary and protecting your estate against a possible family provision claim.