How to Disinherit a Child in a Will in Australia
You have made the decision, and you have your reasons. Maybe you have not spoken in a decade. Maybe you have already given them more than their share while you were alive. The question you are really asking is whether your will can make it stick.
Let’s start with the hard truth. You can leave a child out of your will in Australia. And an eligible child can still challenge it after you are gone, because family provision laws let a court override your will if it decides you failed to make adequate provision. Nothing makes disinheritance bulletproof. What you can do, and what this article will walk you through, is making a successful claim as hard as possible.
Here are the steps, in order:
- Get advice from wills and estates lawyers before you sign anything. Disinheritance is the most litigated corner of estate law; a will drafted without advice is the easiest kind to challenge.
- Record your reasons properly, in a statement of reasons or a statutory declaration.
- Have your solicitor make detailed file notes at the time. Those notes become evidence if the will is challenged.
- Consider how your assets are held, and understand the notional estate catch before you restructure anything.
- Review the will after any reconciliation or change. An out-of-date exclusion is worse than none; our guide to making a will in Australia covers keeping it current.
Before you start, have three things in hand: a full list of your assets and how each is owned (sole name, joint, super, trust, company), a clear account of your reasons with dates and specifics, and an honest picture of the excluded child’s financial position. All three shape whether your plan holds.
Now the mechanics.
Learn what steps you can take next.
The statement of reasons
This is the core mechanism most people have never heard of. A statement of reasons is a document, either a clause in the will itself, a separate signed statement, or a statutory declaration, explaining why you have made limited or no provision for a child.
A statutory declaration is the stronger form of the same idea: it is sworn, dated and witnessed, which makes it harder to dismiss later as an afterthought. Either way, the court reads it as evidence of your thinking, not as an instruction it must obey. That distinction matters: a statement of reasons does not block a claim, it answers one.
What separates a statement that helps from one that hurts:
- Specific incidents with dates, not character assessments. “We have had no contact since March 2014 despite my letters of 2015 and 2016” survives scrutiny. “He was always ungrateful” invites it.
- Provision already made. If you supported that child during your life (a house deposit, a business loan forgiven, years of rent), say so with amounts and dates.
- No insults. Spite in the document reads as unreliability, and it hands the claimant a sympathetic courtroom moment.
- Consistency with the file. Have your solicitor take detailed notes of your reasons at the time of drafting. If a challenge comes, those contemporaneous notes corroborate the statement.
Done well, this works. In D’Apice v Passas (No 2) [2026] NSWSC 570, the will explained the unequal treatment (the excluded daughter had already received substantial provision during the deceased’s lifetime), a 2014 statutory declaration documented the reasons, and the Supreme Court of NSW dismissed her claim.
Your statement of reasons should cover: the relationship history with dates; specific incidents behind the decision; provision already made, with figures; the excluded child’s financial position as you understand it; and confirmation you understood they might still claim.
So why is nothing bulletproof? Because the court’s question is not whether your reasons were genuine. It is whether the child was left in need. Here’s where that leads.
A real outcome: why nothing is clear-cut
A recent Supreme Court of Victoria case shows exactly how a documented, explained disinheritance can still be overridden: Cotter v Tomassini [2025] VSC 518.
A father left his roughly $6 million estate to his new partner. The will explained why his daughter Jacqueline received nothing: in the divorce, her mother had taken about $43 million, 81 per cent of a $54 million pool, so the daughter’s side of the family was already provided for.
And when the father died, Jacqueline sued his estate for $3.3 million. And the judge ruled that the father still had a moral duty to make provision for his daughter because Jacqueline didn’t have direct access to that $43 million at that time. Those assets weren’t guaranteed to address her immediate needs. So the court awarded her $1.15 million.
Sit with that. The reasons were real, the family wealth was real, and the will still moved. The mother’s millions sat in trusts the daughter could not reach, so on the day the claim was heard, her own position showed need, and need is what the court weighs.
That was a Victorian decision, but do not read it as a Victorian quirk. Every Australian state has an equivalent family provision regime; in NSW it is the Succession Act 2006, and the analysis runs the same way.
If a child is left out of a will, can they contest it?
Usually, yes. Children of the deceased, including adult children, are eligible persons who can apply for a family provision order, asking the court to redistribute the estate.
In NSW, eligible persons are defined in s 57 of the Succession Act 2006 (NSW) and family provision orders are made under s 59; claims are heard in the Supreme Court of NSW. (Older articles cite the Family Provision Act; it was repealed in 2009, and the Succession Act now governs.)
The court asks whether adequate provision was made for the claimant’s proper maintenance and advancement in life, weighing their financial position, health, relationship with you, and the size of the estate. The policy behind these laws is blunt: parliament would rather a will-maker support a child in need than have that person fall back on the public purse.
And here is the corrective most people find unfair: financial need can outweigh both estrangement and contribution. A struggling, estranged child can succeed where a devoted, comfortable one would not, because the devoted child cannot demonstrate need. Fair or not, plan around it. If you are on the other side of this page, left out and wondering about your options, our guide to contesting a will in NSW covers the claimant’s side.
Why leaving them $1 does not work
The old tactic of leaving a token amount, a dollar, a thousand, ten thousand, to “show they weren’t forgotten” defeats nothing. Eligibility to claim is a statutory right. A child left $1 is exactly as entitled to bring a family provision claim as a child left nothing, and the token gift does not buy any protection. If anything, a spiteful token invites the court to read the will less charitably. If your real goal is claim-resistance, the tools are the ones above: reasons, records, and structure.
The notional estate catch
The next tactic people reach for: move everything out of the estate so there is nothing to claim against. Joint accounts, trusts, super nominations, lifetime transfers. In most of Australia that can work. In NSW, there is a catch with a name: notional estate.
Under Part 3.3 of the Succession Act 2006 (NSW), the court can designate assets moved out of your estate as “notional estate” and claw them back in to satisfy a family provision order.
The reach is technical, but the short version: certain transactions made in the years before death, and some assets that pass outside the will, can be brought back within the court’s grasp. So a NSW restructure designed purely to defeat a claim can be unwound after your death. Structuring still has a place, done early and for genuine purposes, but treat any adviser who promises “just put it in a trust and they can’t touch it” with suspicion in NSW. Exactly what your super and trust arrangements would survive is a question for specific advice.
One more number to plan around: a family provision application in NSW must generally be made within 12 months of the date of death (s 58(2)), though the court can extend that window. Your executor should not treat the first anniversary as a finish line, but it is the default horizon for claims.
Cases of estrangement
Estrangement is the most common reason parents want to disinherit, and the most misunderstood. On its own, estrangement does not defeat a claim. The court looks at the whole relationship: how the estrangement arose, who sustained it, any attempts at reconciliation, and the claimant’s conduct towards you, alongside their need.
Two practical points from how these matters actually run:
- Document the story, not just the ending. Who stopped contact, when, and what you did about it. An estrangement the child caused and maintained weighs against their claim; one you initiated weighs less.
- Review after any thaw. Estate lawyers see the same pattern constantly: a parent cuts a child out, and within months there is a reconciliation and the will needs reversing. If you reconcile, even partially, update the will and the statement of reasons. An exclusion written before a thaw is a gift to the claimant’s barrister.
Can you legally disown your child in Australia?
Disowning has no legal machinery for adult children: there is no document that severs the legal relationship between parent and adult child. You can exclude them from your will, stop supporting them, and say why, but they remain your child at law, which is exactly why they remain an eligible person under family provision legislation. The disinheritance tools on this page are the closest the law comes.
Disinheriting a child properly is a drafting job, an evidence job and a structuring job all at once, and the cost of doing it badly lands on the people you did want to provide for. Me and my team of wills and estates lawyers prepare claim-resistant wills and statements of reasons regularly. Book a free discovery call on 1300 614 732 and we will tell you honestly how strong your plan is and what would make it stronger. No pressure, no judgment, just straight talk.
Frequently Asked Questions
How do I disinherit a child in a will in Australia?
For a Will to be legally valid in New South Wales, it must be in writing, signed by the person who made the Will, witnessed by two people who Exclude them expressly in a professionally drafted will, record your reasons in a statement of reasons or statutory declaration, have your solicitor keep file notes, and consider how assets are held. No method is bulletproof: an eligible child can still bring a family provision claim, so the goal is making that claim as weak as possible.are present at the same time, and made by a person who has the mental capacity to do so. Informal Wills can occasionally be accepted by the Supreme Court at their discretion.
Does leaving a child $1 stop them contesting the will?
No. Eligibility to bring a family provision claim is statutory, so a token gift gives no protection. A child left $1 can claim exactly as a child left nothing can.
How long does a child have to contest a will in NSW?
Generally 12 months from the date of death under s 58(2) of the Succession Act 2006 (NSW). The court can extend the deadline, or the parties can consent to a late claim, so the window is a default rather than an absolute bar.
Can assets in a trust or super be clawed back into the estate?
In NSW, yes, potentially. The notional estate provisions in Part 3.3 of the Succession Act 2006 let the court designate certain assets moved out of the estate as notional estate to satisfy a family provision order. Whether a particular trust or super arrangement is reachable is a technical question for specific advice.
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