The recent case of Re Estate McNamara [2018] NSWSC 1661 reinforces the position that attempts by testators to expressly disinherit eligible persons in wills do not prevent the eligible person from either bringing a Family Provision claim, or from succeeding in an application for provision, or additional provision, from the testator’s estate. At 55 Lindsay J comments:

Upon an examination of the facts of the case from that perspective, and viewing the totality of the relationships between the deceased and her sons and their respective families, the deceased’s testamentary disclaimer of an intention to benefit the plaintiff is not an absolute bar to the making of a family provision order in his favour. 

The deceased provided an extensive and clear direction in her will that her adult son not receive provision out of her estate. Notwithstanding this express intention, the adult child was awarded $75,000 out of the estate, although that sum was severely limited given the circumstances – see at 66:

Had the plaintiff had a consistent, supportive and loving relationship with his parents, (more particularly, his mother) throughout his life he would have a greater claim to his mother’s bounty than he has now.

The court’s discussion in McNamara should be considered by practitioners when drafting wills for clients who are seeking to disinherit eligible persons. Clients should be advised that any such attempt may not be effective and by providing instructions to draft such a will they may only serve to burden their estate with the costs of Family Provision litigation.

The By Lawyers 101 Succession Answers (NSW) reference guide has been updated to include this case.