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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.
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.
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).
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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