TESTAMENTARY STATEMENTS: WRITTEN REASONS FOR REDUCING PROVISION OR FOR LEAVING SOMEONE OUT OF A WILL

When will makers leave someone (such as an estranged child) out of a will they often write what is called a TESTAMENTARY STATEMENT to explain their decision. The hope is that, if the will is challenged, then this statement will be sufficiently explanatory so a court ill not interfere with the provisions they have made.

Willmakers need to be aware: if the matter does go to court, then evidence can be called to either support or undermine the assertions in their statement. It is vital therefore to be very clear-eyed and accurate about what goes into it.

In Kouroutis v Kouroutis [2023] NSWSC the court decided that the deceased’s written reasons for downgrading benefits to his daughter were incorrect:  he had stated that his daughter had not attended her mother’s funeral and that she had not visited him in a nursing home for 12 months. Evidence was provided in court that both of these statements were wrong. His testamentary statement therefore had little weight and the daughter’s provision was more than doubled.

RECOMMENDATIONS

·       If you want to provide written reasons do them in a separate statement not in the body of the will.

·       The statement should include reasons for the exclusion of a person as well as the inclusion of others.

• Try to be objective: don’t lay all the blame on the other person if you too are somewhat at fault.

•  Outline what you have done to try to rectify the estrangement.

•  Update the statement to reflect changes in the nature of the relationships and any other matters dealt with in the statement.

Flanagan Legal Newcastle can provide advice if you are considering using such statements to bolster your decision regarding your testamentary decisions (who you will leave in or out of a will and why you may do so).