Updated 22 October 2026
Wills - Potential Problem #26: Disinheriting Without Explanation
Disinheriting a family member in New South Wales requires careful consideration and clear documentation. You can generally choose who receives your estate, but an eligible person may seek family provision even where your will clearly excludes them. Explaining your decision can help establish your intentions and the relevant history. It cannot guarantee that your wishes will survive a challenge.
The practical task is to prepare a valid will, understand potential claims and keep reliable evidence of your reasons. A family disagreement, a long period without contact or a signed explanation should never be treated as automatic protection.
Is there a high threshold for disinheritance
There is no separate statutory “high threshold” that a parent must satisfy before leaving an adult child out of a will. Nor must the parent prove serious misconduct before making that choice. The difficulty is whether complete exclusion can withstand a family provision claim under the Succession Act 2006 (NSW).
An eligible applicant must establish that adequate provision has not been made for their proper maintenance, education or advancement in life. The Court then determines what provision, if any, ought to be made. Being disappointed, receiving less than a sibling or disagreeing with the deceased is not enough by itself.
Exclusion can be difficult to defend where an applicant has substantial unmet needs and the estate can reasonably provide for them. However, the Court considers the whole situation. It does not apply an automatic entitlement, a fixed minimum inheritance or a requirement that children receive equal shares.
Who can bring a family provision claim
Eligible categories include a spouse or de facto partner at death, a child, including an adult child, and a former spouse. Certain grandchildren or household members who were wholly or partly dependent on the deceased may qualify, as may someone living with the deceased in a qualifying close personal relationship at death.
Eligibility gives someone the ability to apply. It does not establish that they should receive money. Some categories, including former spouses and qualifying dependent grandchildren, must also demonstrate factors warranting the application. The precise relationship, dependency and statutory requirements need individual assessment.
What the Court considers
The assessment under sections 59 and 60 considers the applicant’s circumstances when the Court deals with the application. Relevant matters can include their income, assets, earning capacity, housing needs, age and disability. The estate’s size and liabilities matter, together with the needs and resources of beneficiaries whose inheritance would be affected.
The Court may also examine the relationship with the deceased, obligations and responsibilities, contributions to the deceased’s welfare or property, previous financial support, and evidence of testamentary intentions. A substantial lifetime gift may be relevant, but should be accurately recorded. Calling an undocumented payment an “advance inheritance” after a dispute begins can create further disagreement.
Estrangement does not decide the case by itself
Years without contact can be relevant, but there is no set period after which a child loses the ability to claim. The Court can examine how the estrangement arose, each person’s conduct and whether reconciliation was attempted. A simple statement that a child “never visited” may leave important circumstances unexplained.
Estrangement must be considered with the other evidence. Financial need does not always overcome a damaged relationship, and a damaged relationship does not automatically defeat financial need. Advice should address the particular family history rather than assume that one fact settles the outcome.
A real NSW case involving an excluded adult son
In Burke v Burke (2015), a mother left nothing to an adult son with whom she had had no contact for approximately 20 years. She recorded her reasons in a letter explaining that he had chosen to separate himself from the family.
The son sought family provision. His financial need was not disputed, but his claim failed and the NSW Court of Appeal dismissed his appeal. The Court rejected the suggestion that significant need necessarily required provision unless the son had behaved with hostility or callousness.
The decision illustrates the importance of considering all the circumstances. The letter formed part of the evidence; it was not a document that prevented proceedings. The result does not establish that every estranged child can safely be excluded or that every financially disadvantaged child must receive an inheritance.
How to document your reasons
A solicitor can help prepare a separate statement explaining your testamentary decisions, often called a section 100 statement. The name refers to the Act’s provisions concerning evidence of a deceased person’s statements. Such a statement can explain the background to a will, but it is not a statutory exemption from family provision law.
Useful explanations identify the person concerned, the relationship history, relevant events, previous assistance and the competing responsibilities you considered. Dates, correspondence and financial records can be more helpful than broad accusations. Distinguish matters you personally know from assumptions about another person’s finances or motives.
The Court can question the accuracy and weight of an explanation, especially where other evidence contradicts it. Avoid exaggeration and include relevant context. Review the statement after reconciliation, further financial assistance or a significant change in circumstances. Your solicitor should advise whether reasons belong in the will itself or in a separate document kept with the estate planning records.
A valid will can still face a family provision claim
A challenge to a will’s validity concerns issues such as testamentary capacity, execution, knowledge and approval, or undue influence. Family provision is a different question: whether an eligible person has received adequate provision. A claimant does not have to prove the will invalid before seeking further provision. Likewise, omitting an explanation does not itself invalidate a properly made will.
Common assumptions to avoid
Leaving a token gift does not remove a person’s eligibility to apply. An exclusion clause or a letter expressing strong wishes does not remove the Court’s powers either. The amount already left to someone is considered as part of the assessment, not as a guaranteed barrier to proceedings.
A private promise not to challenge the estate also needs careful advice. Under section 95, a release of family provision rights requires Court approval to be effective. Do not assume an informal family agreement has conclusively resolved future claims.
Deadlines and the scale of disputes
Family provision applications generally must be brought within 12 months of death, unless the Court permits a later application on sufficient cause. Probate need not have been granted before a claim is started. Anyone considering a claim should obtain advice promptly rather than wait for the estate to be distributed.
The Supreme Court’s provisional 2025 statistics, compiled as at 22 January 2026, record 960 family provision filings. These figures show the volume of claims, not the percentage of disinheritance decisions challenged or the likelihood that any particular applicant will succeed.
Five practical steps before excluding a beneficiary
1. Identify potential claimants. Give your solicitor a complete family and dependency history, including previous relationships and people you have supported.
2. Consider competing needs. Explain why you are favouring particular beneficiaries and what you know about each person’s financial circumstances.
3. Record your reasons accurately. Prepare a considered explanation supported by relevant records. Avoid assumptions, exaggeration and emotionally charged labels.
4. Protect independent instructions. Discuss your wishes privately with your solicitor and address any capacity concerns appropriately. Consider family communication where it is suitable and safe.
5. Review the whole plan. Update your will and explanation after significant changes, and ensure your executor knows where the signed documents and supporting records are held.
CM Lawyers can help you assess potential family provision risks and document your decisions clearly. Explore our wills and estates resources or contact our team to discuss your estate planning.
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