Exclusion clauses in Wills are consistent with the long accepted principle of testamentary freedom in Victoria but are ill advised without good legal advice. The problem with an exclusion clause (in which a person making a will explains why he is leaving a certain person out) is the ease with which any reason or allegation, made against some one left out of a will, might refute the claims. It is a much better idea, if it is proposed to leave a family member out of a will, to instead collate and retain evidence of the behaviors and circumstances in which the omission is contextualised. Statements in the will makers hand can be problematic, as often inadmissible allegations and assertions are included. Edited statements signed by the will maker and revised regularly are perhaps a minimum requirement. Affidavit evidence would be even better.
The benefit of the separate evidence not contained in the will is that it can be used only if required and avoids any reference to the omitted person in the actual will itself, an error which, in and of itself, often invites a claim.
At the end of the day, no amount of evidence will protect an estate against a good claim by someone to whom the will maker is obviously obliged to make provision. Where this situation exists alternative approaches need to be considered. These approaches also have potential downsides.
The benefit of the separate evidence not contained in the will is that it can be used only if required and avoids any reference to the omitted person in the actual will itself, an error which, in and of itself, often invites a claim.
At the end of the day, no amount of evidence will protect an estate against a good claim by someone to whom the will maker is obviously obliged to make provision. Where this situation exists alternative approaches need to be considered. These approaches also have potential downsides.
No comments:
Post a Comment