This article was written by Grace Blake Solicitor at W & G Lawyers.
Life changes, and so do family relationships. Whether due to separation, estrangement, or shifting financial circumstances, many people at some stage consider whether they can remove a beneficiary from their Will.
In Queensland, the short answer is yes. As the maker of your Will (the testator), you generally have the legal right to decide who inherits your estate and to update your Will at any time. However, what many people do not realise is that excluding someone from your Will does not necessarily prevent them from making a claim against your estate after your death.
Without careful estate planning, the decision to remove a beneficiary can unintentionally increase the risk of a legal dispute.
This article explains how beneficiary exclusion works in Queensland and the key risks you should consider before making changes to your Will.
How to Remove a Beneficiary From Your Will
There are two primary ways to remove a beneficiary from your Will:
- Drafting a Codicil
A codicil is a legal document that amends an existing Will. While it can be suitable for minor changes (such as changing an executor or correcting small details), it is generally not recommended for removing beneficiaries. Multiple documents can create confusion and increase the risk of disputes or interpretation issues later.
- Making a New Will
In most cases, the safest approach is to prepare a new Will that clearly revokes all previous versions. This ensures there is only one valid document setting out your wishes and reduces the risk of inconsistency or challenge.
The Key Risk: Family Provision Applications
One of the most important considerations when excluding a beneficiary is the risk of a family provision application.
Under Queensland law, certain eligible individuals may apply to the Court for further provision from an estate if they believe they have not been adequately provided for.
This means that even if someone is excluded from your Will, they may still have standing to challenge your estate.
Who may be eligible to make a claim?
The following categories of people are commonly eligible to bring a claim:
- Spouses: This includes legally married husbands and wives, de facto partners, and civil partners.
- Children: This includes biological children, adopted children, and stepchildren.
- Dependants: Anyone who was being wholly or substantially maintained or supported by you at the time of your death (such as a grandchild or a parent).
A common misconception is that adult children cannot contest a Will if they are financially independent or estranged. However, eligibility is not determined solely by financial independence or the state of the relationship.
Separation, Divorce, and Estate Planning
It is important to distinguish between separation and divorce.
- Divorce generally revokes provisions in a Will that benefit a former spouse.
- Separation alone does not have the same effect.
This means that if you are separated but not yet divorced, your former partner may still benefit under an existing Will or may be able to make a claim against your estate.
Common Situations That Lead to Disputes
Estate disputes often arise where:
- One child is excluded from the Will;
- Assets are distributed unevenly between children;
- A new partner is favoured over children from a previous relationship; or
- Long-standing family conflict influences estate decisions.
While these decisions are often deeply personal and complex, they can significantly increase the likelihood of litigation and place emotional and financial pressure on surviving family members.
Can Leaving a Small Amount Prevent a Claim?
Leaving a nominal gift (such as $1) does not prevent a person from contesting a Will in Queensland.
The Court focuses on whether the adequate provision has been made for the person’s proper maintenance and support, rather than the symbolic value of any gift.
What the Court Considers
If a family provision claim is made, the Court will consider a range of factors, including:
- The size and nature of the estate;
- The financial circumstances of the applicant;
- The relationship between the parties;
- Any contributions made to the deceased’s welfare or estate;
- The needs of other beneficiaries; and
- The reasons for the decisions made in the Will.
Each case is assessed on its individual circumstances.
Structuring Your Estate to Reduce Risk
While it is not possible to completely eliminate the risk of a claim, careful planning can help reduce uncertainty and strengthen your estate plan.
Strategies may include:
- Obtaining legal advice before excluding a beneficiary;
- Clearly documenting the reasons for key decisions;
- Regularly reviewing your Will as circumstances change;
- Considering appropriate estate planning structures; and
- Ensuring superannuation and insurance nominations are correctly completed.
In some cases, careful structuring of assets during your lifetime may also affect what forms part of your estate.
How W & G Lawyers Can Help
Estate planning decisions can have long-term consequences, particularly where relationships are complex or where there is a risk of a Will being challenged.
At W & G Lawyers, we assist clients in preparing reviewing, and updating Wills to ensure their estate plans are clear, legally sound, and tailored to their circumstances.
We can help you:
- Update or restructure your Will to reflect current wishes;
- Lawfully exclude or include beneficiaries with reduced risk of dispute;
- Understand who may be eligible to contest your estate;
- Put in Place strategies to minimise the risk of family provision claims; and
- Ensure your superannuation, property, and other assets are properly aligned with your estate plan.
Our focus is on providing clear, practical advice so you understand not only what your Will says, but how it is likely to operate in practice.
If you are considering changes to your Will or would like to review your current estate planning arrangements, we recommend obtaining legal advice before proceeding.
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Disclaimer
This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.