What is the effect of a testator expressly excluding a potential claimant from a Will?
In some circumstances a testator will explicitly set out the reasons why a child has been excluded from a Will.
This is a relevant consideration when evaluating an estate challenge. It should be noted, however, that the clause is not evidence of the truth of such statement. Rather, it is treated by the Court as an explanation of the deceased’s reasons why the Will was drawn as it was.
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd outlines why the statement cannot be used as evidence as to the truth of the statement by imposing a positive duty upon the child to disprove allegations. It states that ‘the testator should not be allowed from the grave to condemn the child and to impose upon the child a positive duty to disprove the allegations’.
Contrarily, if the claimant can demonstrate the falsity of such statement then it may be used as evidence that the testator was not not wise and just in determining the disposition of their assets. (Hyatt)