How to Write Someone Out of Your Will in Australia
Can You Write Someone Out of Your Will in Australia?
Yes. In Australia, you have “testamentary freedom”, which means you can leave your estate to whoever you choose and exclude almost anyone, including an adult child, a partner, a relative or a live-in carer. The catch is that excluding someone in your Will does not stop them from making a family provision claim against your estate after you die. Certain people, called eligible persons, can ask a court for a share regardless of what your Will says.
So the real question is not whether you can write someone out, but how you do it so the exclusion holds up. In our experience helping hundreds of Australian families with their estate planning, the difference between an exclusion that sticks and one that gets overturned comes down to three things: making your intention explicit, recording your reasons properly, and getting the wording right.
Most people assume that leaving someone out of a Will is as simple as not naming them. It is not. In our experience helping Australian families with their estate planning, this is the single biggest misunderstanding we see, and it is the reason so many exclusions fall apart after the person has died. A silent omission can look like an accident, giving a disappointed relative an opening. Worse, if an eligible person succeeds in a family provision claim, the legal costs usually come out of your estate, so the people you did want to provide for end up with less.
The good news is that a deliberate, well-documented exclusion is far harder to challenge than people think. It comes down to getting three things right: naming the exclusion clearly in the Will, recording your reasons in a separate Letter of Wishes, and using the correct wording so your intention is beyond doubt. The rest of this guide walks through exactly who can still claim against your estate, how to exclude someone step by step, and how to write a Letter of Wishes that actually stands up.
Key Takeaways
- You can legally exclude almost anyone from your Will in Australia, but you cannot prevent an eligible person from making a family provision claim.
- Do not simply leave the person unmentioned. Silence can look like an oversight that a court can correct. State the exclusion clearly.
- Eligible persons include spouses and de facto partners, children (including adult and estranged children), and in many states a dependant or member of your household, such as a live-in carer or housekeeper.
- A Letter of Wishes that records your reasons is the single most useful tool for defending an exclusion. Courts can take your stated reasons into account.
- Keep the Letter of Wishes factual and measured. It is not binding, and it can be read in court, so anything false or vindictive can backfire.
Legal issues covered in this guide
Can You Legally Leave Someone Out of Your Will in Australia?
Yes, you can. Australian law gives you testamentary freedom, the right to decide who inherits your estate. No state or territory forces you to leave anything to a particular person. What every state and territory does have is family provision legislation, which lets certain people apply to a court for provision from your estate if they have been left out or left with less than they need.
In short, you are free to exclude someone, but that freedom is not absolute. The exclusion can be challenged. Your job when writing the Will is to make that challenge as hard as possible to win.
Can a parent exclude one child from their will?
Yes. A parent can leave one child out while providing for the others. This is common in blended families, where one child is estranged or has already received significant financial help during the parents’ lifetime. The excluded child remains an eligible person in every Australian state, so they can still bring a family provision claim. The court will look at the size of the estate, the child’s financial need, and the reasons for the exclusion before deciding whether to interfere.
Can you exclude your children from inheritance in Australia?
Yes, you can exclude one or all of your children, but children have a recognised right to seek provision from a parent’s estate. A long period of estrangement helps your position, but does not automatically end a parent’s moral duty to provide. The clearer your reasons and the stronger the evidence behind them, the better the chance the exclusion survives a challenge.
Can you cut a family member out of a will?
Yes. You can cut out a sibling, a parent, a niece or nephew, or a more distant relative, and most of these people are not eligible to make a family provision claim at all. Eligibility is limited to a defined list, usually spouses, de facto partners, children, former spouses in some cases, and certain dependents. A relative who falls outside that list generally has no standing to claim, which makes them straightforward to exclude.
Can a husband leave his wife out of a will in Australia?
Legally, a spouse can be left out, but it is one of the hardest exclusions to make stick. A current husband or wife is a top-priority eligible person, and the courts give a surviving spouse strong protection. Excluding a spouse without provision will almost always invite a successful claim unless there is a binding financial agreement or the marriage had genuinely ended. This is a situation where professional advice is essential, not optional.
Who Can Still Make a Claim Even If You Leave Them Out?
Only an eligible person can make a family provision claim. This is the most important concept in the whole topic because if the person you want to exclude is ineligible, the exclusion is straightforward. If they are eligible, you need to take further steps to protect your wishes.
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The exact list varies by state, but eligible persons generally include a current spouse or de facto partner, children (including adult and estranged children), former spouses in some circumstances, and a person who was wholly or partly dependent on you, including in some states a member of your household.
Can you leave an estranged child out of your will?
Yes, and estrangement is one of the more defensible reasons to exclude a child, but it is not a guaranteed shield. Courts treat a long, deep estrangement as a relevant factor that can reduce or remove a parent’s moral duty, especially where the child caused the breakdown. The outcome turns on the facts: how long the estrangement lasted, who caused it, the child’s conduct, and the child’s financial need. Document the history clearly.
What happens if a child is left out of a will?
If a child is left out, they inherit nothing under the Will unless they successfully challenge it. An eligible child can lodge a family provision claim within a strict time limit, which is six months from the grant of probate in some states and longer in others. If the court agrees the parent failed in a moral duty to provide, it can order a share of the estate to be paid to the child, with the legal costs often coming out of the estate too.
Excluding a live-in carer, housekeeper or other dependant
This is where many people get caught out. A live-in housekeeper, carer or companion who depended on you can be an eligible person in several states, even with no blood relationship and no marriage. If someone lived in your household and relied on you for support, they may be entitled to make a claim, and simply leaving them out of the Will does not remove that right.
This does not apply if they were paid under an arms-length commercial arrangement, but if they lived in your home at no cost or a reduced rate, you may find they have a claim as ‘part of your household’.
We see this regularly: a homeowner assumes a long-term housekeeper or carer has no claim because they are not family, then the estate faces a provision application. If you share your home with someone who depends on you and you intend to exclude them, treat it with the same care as excluding a child. State the exclusion explicitly and record why.
How to Write Someone Out of Your Will, Step by Step
Properly excluding someone is a deliberate process, not just leaving a name off the page. Here is how to do it so your intention is clear and defensible.
How do I remove a person from a will?
Name the person and state plainly that you are not providing for them. The biggest mistake is silent omission, simply not mentioning someone. A court can read silence as forgetfulness and may be more willing to intervene. Instead, identify the person by full name and relationship and include a clear statement that the exclusion is deliberate. If you are updating an existing Will to remove a beneficiary, make a new Will or a properly executed codicil rather than crossing anything out, because handwritten alterations can invalidate the document.
Wording to exclude someone from a will in Australia
Use a short, unambiguous exclusion clause that names the person and confirms the omission is intentional. A typical clause reads along these lines:
I have made no provision in this Will for my [son/daughter/relationship], [full name], and this omission is deliberate. My reasons are set out in a separate signed statement kept with this Will.
Keep the clause itself factual and brief. Put the detailed reasons in a separate Letter of Wishes rather than in the Will, because the Will becomes a public document once probate is granted, and you usually do not want sensitive family reasons on the public record.
Should you use a no-contest clause?
A no-contest clause, sometimes called a forfeiture clause, says a beneficiary loses their gift if they challenge the Will. They have a limited effect in Australia and cannot block a family provision claim, because that right is given by statute and cannot be removed by a clause in your Will. A no-contest clause can still discourage a beneficiary who has been left something modest from risking it, so it has a narrow use, but do not rely on it to stop an eligible person who has been left nothing.
Keep your will current and properly executed
An exclusion only works if the Will is valid. That means it is in writing, signed by you, and witnessed by two adults who are not beneficiaries, with everyone present at the same time. Review the Will after any major life event, such as a marriage, divorce, a new child or the death of a beneficiary, because in most states, marriage revokes an earlier Will, and divorce can cancel gifts to a former spouse. An out-of-date Will is one of the easiest things for a disappointed relative to attack.
What Is a Letter of Wishes?
A Letter of Wishes is a separate, private document that sits alongside your Will and explains the reasoning behind your decisions, including why you have excluded someone. It is not legally binding or part of the Will, but it is persuasive. Courts can take a deceased person’s stated reasons into account when weighing a family provision claim, and in New South Wales, the Succession Act 2006 expressly allows the court to consider the testator’s reasons for excluding a person from their Will.
How to write an effective Letter of Wishes
- Be specific and factual. Set out what happened and when, not just that you were unhappy.
- Stay measured. Avoid insults or anything you cannot back up, because the letter can be produced in court.
- Address financial need. Note if the person is financially independent or has already received help from you.
- Sign and date it, and consider making it a statutory declaration for extra weight.
- Store it with your Will and tell your executor it exists.
One warning from practice: a Letter of Wishes that is angry, exaggerated or wrong can do more harm than good. If it contains claims that turn out to be false, it can undermine your credibility and hand the other side ammunition. Keep it calm and truthful.
What are the grounds for disinheriting a child?
In Australia, you do not need legal grounds to disinherit a child. You can exclude a child for any reason or no reason at all. Grounds matter only when the exclusion is challenged, because that is when your reasons are weighed against the child’s need. Common reasons that courts find persuasive include:
- Long-term estrangement caused by the child
- Serious misconduct toward you
- Significant financial help already given during your lifetime, or
- The child being financially comfortable while another beneficiary is in greater need
The Risks of Getting It Wrong
A poorly handled exclusion can cost your estate far more than the gift you tried to withhold. If an eligible person succeeds in a family provision claim, the court can redirect part of your estate to them, and the legal costs of the dispute, sometimes for both sides, often come out of the estate. That means less for the people you did want to provide for.
Common mistake
Trying to disinherit a spouse or dependent child without any provision and without documented reasons is the most frequent cause of a successful challenge. The exclusion looks harsh; there is no explanation for the court to consider, and the estate ends up paying. If the relationship is sensitive, invest in having it properly drafted by a qualified lawyer.
Should You DIY or Have a Lawyer Draft It?
For a straightforward Will, a quality template is fast, valid and far cheaper than a lawyer. For a Will that deliberately excludes someone, the answer depends on who you are excluding. Excluding a distant relative with no clear claim is low risk, and a good template handles it easily. Excluding a spouse, a dependent child, or a live-in carer is a higher risk and warrants professional drafting, because the wording and the supporting Letter of Wishes need to withstand challenge.
A practical middle path works for many families: use a lawyer-drafted online Will kit for the structure, and get tailored advice on the specific exclusion clause and Letter of Wishes.
Frequently Asked Questions
Do I have to leave my son anything in my will?
No, you are not legally required to leave your son anything. You can exclude him entirely. However, a son is an eligible person who can make a family provision claim, so whether the exclusion is valid depends on his financial circumstances, his conduct, the size of your estate, and the reasons you record for leaving him out.
Can I exclude my daughter from my will?
Yes, you can exclude a daughter on the same basis as a son. State the exclusion clearly, record your reasons in a Letter of Wishes, and be aware she can still bring a family provision claim as an eligible person. The strength of your documented reasons and her financial independence will largely determine whether the exclusion survives.
How much do you have to leave a child in a will?
There is no fixed minimum amount you must leave a child in Australia. The law does not set a percentage or a dollar figure. If a child challenges the Will, a court decides what provision, if any, is adequate for their proper maintenance based on their needs and the estate’s size. For many independent adult children with no real need, the answer can be nothing.
References
- Succession Act 2006 (NSW), Chapter 3 Family Provision
- Attorney-General’s Department, wills and estates information
About the Author: Vanessa Emilio
Need legal documents written specifically for your business? Vanessa and her team draft custom legal documents for Australian online businesses, or you can book a 30-minute call to talk through what you need.
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