One of the most confronting questions we hear in estate planning is: “Can I leave my child out of my Will?”
Parents raise this for many reasons. It may be long-standing estrangement, conflict, concerns about financial responsibility, or simply a belief that their estate should go elsewhere. Some parents feel their children are already financially independent and don’t “need” inheritance. At other times, the parents have experienced hurt that remains unresolved.
Whatever the reason, the short answer is: yes, you can exclude a child from your Will but that does not guarantee they won’t receive anything from your estate.
Here’s why.
Testamentary freedom: the starting point
In Western Australia, you have what’s known as “testamentary freedom.” This means you are generally free to leave your estate to whoever you see fit. You can leave everything to charity, to friends, to one child and not others, or to your pet’s carer.
Your Will reflects your wishes and the law respects that.
However, this freedom is not absolute.
The key exception: the Family Provision Claim
In Western Australia, the Family Provision Act 1972 (WA) (‘Act’) allows certain people, including adult children, to apply to the Supreme Court of Western Australia for further provision if your Will fails to make adequate provision for their proper maintenance, support, education or advancement in life.
Under section 6 of the Act, an “eligible person” can apply to the Court for provision or further provision out of an estate if they believe the Will did not make proper and adequate provision for their proper maintenance and support.
Who can make a claim?
Section 7 of the Act lists a number of eligible persons, including:
- the spouse or de facto partner of the deceased;
- children of the deceased (including adult children);
- grandchildren in certain circumstances;
- people who were being maintained by the deceased immediately before death (including a stepchild); and
- a parent of the deceased.
For purposes of this article: yes, adult children are eligible claimants.
A 50-year-old child has the same right to bring a claim as a minor child.
The factors for the Supreme Court
If a child makes a Family Provision Claim, the Court does not automatically rewrite your Will ot overturn your wishes. Instead, the Court undertakes a careful two-stage analysis as set out in the High Court case of Singer v Berghouse [1994] HCA 40. The Court considered whether:
(a) The Will made an “adequate” provision for the claimant; and if not,
(b) What provision should be made.
To determine this, the Court balances a wide range of factors, including:
The size of the estate
A larger estate may be more readily available to provide for multiple claims. Conversely, a small estate may not stretch far enough to provide for everyone.
The financial circumstances of the claimant
Assets, income, liabilities, earning capacity and the actual financial need of the claimant are assessed.
Competing claims and other beneficiaries
If the child who has been left out is financially secure, while the beneficiaries named in the Will are in financial need, the Court considers it a relevant factor. The Court also considers the number of claims that can be made over an estate.
The relationship between the deceased and the claimant
Though not conclusive, close, supportive relationships can strengthen a claim and long-term estrangement may weaken it.
Any contributions made by the claimant
If the claimant contributed towards the deceased’s welfare or to improving the deceased’s assets, it is a relevant factor.
The deceased’s moral obligations to provide for children
Parents generally have obligations toward minor children but might also have ongoing obligations toward adult children in certain circumstances.
The deceased’s reasons for the decision
If you have expressly left a child out of your Will, the explanation for your decision may assist the Court.
Disentitling conduct of the claimant
While any issue with the claimant’s conduct or character may not automatically defeat a claim, if a child has treated the deceased badly or has been involved in serious misconduct, it may disentitle the claimant.
Any other relevant matter
The Court has broad discretion to consider anything it thinks is relevant to the case.
Common misconceptions about disinheriting children
Misconception #1: “If I state my reasons in my Will, they can’t challenge it.”
While an explanation clause can be helpful evidence of your reasons and intentions, it doesn’t stop a child from making a claim. The Court will read and consider your explanation, but it’s just one factor among many. If the Court decides that adequate provision hasn’t been made, it has the power to order that provision be made regardless of what your Will says.
That said, a well-drafted explanation clause can be valuable. If you’re going to disinherit a child, we generally recommend including a clear statement of your reasons in the Will.
Misconception #2: “Adult children cannot make claims.”
This is one of the most common misconceptions we encounter, and it’s completely wrong.
In Western Australia, adult children absolutely can make Family Provision Claims. There’s no age limit.
The difference is that minor children often have a stronger case because they clearly need support. If adult children are in financial hardship or had a close relationship with the deceased and provided care, can certainly succeed in claims.
Misconception #3: “If my child is wealthy, they definitely cannot make a claim.”
A child’s financial circumstances are certainly relevant, but wealth does not automatically disqualify someone from making a claim.
The test is whether adequate provision has been made for the child’s “proper maintenance and support.” While a wealthy child will often find it difficult to establish that they need further provision, it’s not impossible. The Court looks at all the circumstances.
For instance, if the estate is very large and the relationship was close, the Court might find that leaving a wealthy child nothing at all (while leaving everything to others) fails to make adequate provision, even if that child doesn’t “need” the money in a financial sense.
Misconception #4: “If we’ve been estranged for years, they can’t make a claim.”
Estrangement is relevant but not decisive.
The Court will certainly consider the nature of the relationship and any estrangement, why the estrangement occurred and who was responsible for it. If you cut off a child without good reason, that’s different from a situation where a child chose to end the relationship.
Even where estrangement is the child’s fault, if that child is in genuine financial need and the estate is substantial, a Court might still order some provision be made.
Misconception #5: “The no-contest clause will stop them.”
Some people try to include what’s called a “no-contest clause” in their Will. This is a provision that says if anyone challenges the Will, they will lose any benefit they would have otherwise received.
In Western Australia, these clauses are generally ineffective against Family Provision Claims. The Court has the discretion to ignore such clauses and make orders it considers appropriate.
What does a successful claim look like?
If a Family Provision Claim is successful, the Court varies the Will to include provision for the claimant, including:
- Ordering that a lump sum be paid to the claimant from the estate;
- Ordering that property be transferred to the claimant;
- Ordering that periodic payments be made to the claimant; and
- Ordering that the estate purchase an annuity or life insurance for the claimant.
The Court has broad powers to make whatever orders it thinks are appropriate to achieve adequate provision.
These orders are made from the estate as a whole, which means they reduce what other beneficiaries receive. If you have left your estate to three children and a fourth successfully claims, the three named beneficiaries will receive less than your Will specified.
Time limits for making a claim
There are strict time limits for Family Provision Claims.
In Western Australia, a claim must generally be brought within 6 months after probate is granted. The Court can extend this time limit, but only if there’s a good reason for the delay and it’s just to do so.
This time limit is important for two reasons:
First, it means there’s a limited window during which your estate administration might be challenged. Once the 6-month period expires (and assuming no extension is granted), beneficiaries can generally receive their inheritance with confidence.
Second, it means that if a child is going to challenge your Will, they need to act relatively quickly. They cannot sit on their rights indefinitely.
The modern reality: the claims are increasing
Findings from Solomon Hollett Lawyers’ 2025 Inheritance State of Play Report show that:
- 60% of Western Australians expect an inheritance dispute within their family;
- Estates over $3 million face near-certain risk of challenge;
- Estrangement is now one of the most common triggers for potential disputes; and
- Adult children are increasingly successful in Family Provision Claims, even after long periods of reduced contact.
All of this makes careful, legally robust estate planning more important than ever.
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Practical steps if you’re considering disinheriting a child
If you’re thinking about leaving a child out of your Will, here’s what we recommend:
Get proper legal advice
This is not an area for DIY Wills. An experienced inheritance lawyer can help you understand the risks and structure your estate plan as effectively as possible.
Consider the child’s circumstances
Think realistically about whether a child is likely to make a claim and whether such a claim might succeed. A child in financial hardship with whom you have maintained a cordial relationship is much more likely to succeed than a wealthy, estranged child.
Document your reasons
Include a clear explanation clause in your Will setting out why you have made your decision. Be specific about the reasons. This won’t prevent a claim, but it will help the Court understand your intentions.
Consider making some provision
Sometimes a modest legacy to a child you wish to largely exclude can reduce the risk or strength of a claim. It demonstrates you haven’t forgotten the child and have made a conscious decision about the appropriate level of provision.
Keep evidence
If there are good reasons for your decision, such as a complete breakdown in the relationship initiated by the child, or previous significant gifts made during your lifetime, keep evidence of these facts. Letters, bank records, and other documents may all be relevant.
Review your Will regularly
Relationships and circumstances change. A decision that makes sense today might not be appropriate in five years. Regular reviews ensure your Will continues to reflect your wishes and circumstances.
Consider discussing your intentions
This isn’t always appropriate, but sometimes having a frank conversation with family members about your estate plans can prevent surprises and reduce the risk of disputes after you’re gone. This is a personal decision that depends on family dynamics.
The cost of Family Provision Claim
Family Provision Claims can be stressful, lengthy and expensive. They often involve legal costs, costs of valuations, medical evidence, and other expert reports.
In many cases, these costs are usually paid from the estate, which means they reduce what’s available for distribution to beneficiaries. Even if a claim is unsuccessful, the estate may still bear significant legal costs in defending it.
This is another reason to carefully consider whether disinheriting a child is likely to lead to litigation. Sometimes making modest provision for all children, even if unequal, can avoid the cost and emotional trauma of a Court battle.
Can you prevent a claim completely?
There is no foolproof way to prevent a Family Provision Claim in Western Australia. However, there are some steps that you can take to reduce the likelihood and the strength of such a claim, such as:
- Make sure your Will is professionally drafted with a clear explanation clause
- Consider making at least some provision for all children, even if modest
- Keep evidence of your reasons for your decisions
- Review and update your Will as circumstances change
- Consider family discussions about your plans where appropriate
- Seek legal advice about structuring your assets and estate plan
Some people consider gifting assets during their lifetime to achieve a particular distribution. While this can be effective, it needs careful consideration. Such gifts can potentially be challenged in certain circumstances, and there may be tax and other implications. Always get legal and financial advice before making significant lifetime gifts.
Final thoughts
Yes, you can disinherit a child in Western Australia. The law respects your testamentary freedom to leave your estate as you wish.
But disinherit doesn’t mean disentitled. A disinherited child can still make a Family Provision Claim, and depending on the circumstances, that claim might succeed.
The key factors are the size of your estate, the child’s financial circumstances, the nature of your relationship, and your reasons for the decision. The larger your estate and the greater your child’s need, the more likely a claim is to succeed.
Plan with clarity
We understand that these decisions are personal and sensitive, which require carefully tailored legal advice. At Solomon Hollett Lawyers, our estate planning lawyers can help you navigate the risks, document your reasons effectively, and structure your estate plan to best achieve your objectives while minimising the risk of successful challenges.
Dealing with an inheritance dispute, estate administration or probate matter?
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