HomeFinanceEstate planning & willsWho should be in your will? The key people you can't overlook

Who should be in your will? The key people you can’t overlook

Creating a will is a fundamental aspect of estate planning, ensuring that your assets are distributed according to your wishes after you pass away. While you might believe you have complete control over who inherits your estate, the reality is that the law can intervene, particularly if you’ve overlooked certain individuals who may have a legal or moral claim to your assets. 

Understanding testamentary freedom and moral duty

In Australia, testamentary freedom allows you to decide how to distribute your assets. However, this freedom is not absolute. The law recognises a concept of moral duty, and asks two important questions: who are you morally obligated to provide for, and have you done so adequately in your will?

The answers to these questions are not always straightforward and can’t be resolved by leaving a token amount to someone just to prevent them from contesting your will. The law aims to ensure that those who were dependent on you, or whom you have a responsibility towards, are not left destitute.

Who should be included in your will?

The individuals you’re morally obligated to provide for can vary depending on the state or territory you reside in. 

Generally, this group includes:

  • your spouse or domestic partner 
  • former spouses or domestic partners 
  • your children, including stepchildren and adopted children 
  • in some cases, even grandchildren.

If someone feels they have been unfairly left out of your will or not adequately provided for, they may contest it.

Courts will then consider several factors, including the nature of your relationship with the claimant, the size and nature of your estate, whether you were supporting the claimant before your death, and the claimant’s own financial needs and resources.

Navigating complex family dynamics

Relationship breakdowns can complicate your estate planning. For instance, if you separate but do not finalise a divorce or property settlement, your former spouse could still be eligible to claim against your estate. It’s essential to formalise a property settlement and obtain a divorce to prevent such claims.

How to protect your estate from claims

To minimise the risk of your will being contested, and to ensure your wishes are carried out, consider the following steps:

1. Have a valid will drafted by a solicitor. Even though it can be contested, having a will is better than not having one at all. 

2. When preparing your will, think carefully about who might be entitled to make a claim and make adequate provision for them. 

3. Keep your will updated, especially after significant life changes such as marriage, divorce, or the birth of a child. 

4. If you are separated, remove your former spouse from your will, finalise any property settlement, and obtain a divorce.

If there is someone you wish to exclude from your will, it’s recommended that this is explicitly stated in your will along with a clear explanation as to why. This helps ensure your wishes are followed and reduces the chance of disputes.

Providing detailed notes to your solicitor further supports your intentions. Trying to bypass this by leaving a small amount to someone you wish to exclude isn’t advisable, as courts may prioritise the beneficiary’s entitlement over your intentions.

The importance of expert advice

Given the complexities involved in estate planning, it’s wise to seek professional legal advice. A solicitor can help you navigate the intricacies of the law and ensure that your will reflects your wishes while also meeting your moral and legal obligations to provide for certain individuals.

By taking the time to carefully consider who should be included in your will, you can protect your estate from potential claims and ensure that your loved ones are taken care of according to your wishes. Remember, your will is more than a document; it’s a final testament to your life and the care you have for your family and friends. Don’t leave it to chance –make sure it’s done right.

Have you recently reviewed your will, or do you have any tips for others navigating this process? Share your experiences and advice in the comments below, and let’s help each other prepare for the future with confidence and peace of mind.

Also read: Explained: Online will kits

Disclaimer: All content on YourLifeChoices website is of a general nature and has been prepared without taking into account your objectives, financial situation or needs. It has been prepared with due care but no guarantees are provided for the ongoing accuracy or relevance. Before making a decision based on this information, you should consider its appropriateness in regard to your own circumstances. You should seek professional advice from a financial planner, lawyer or tax agent in relation to any aspects that affect your financial and legal circumstances.

Ellie Baxter
Ellie Baxter
Writer and editor with interests in travel, health, wellbeing and food. Has knowledge of marketing psychology, social media management and is a keen observer and commentator on issues facing older Australians.


  1. It really annoys me that you do all the right things & create a wil stating what you want but the courts allow it to be overturned…so what is the point of writing one…if I wish to leave everything to the lost dogs home & not greedy family members why can’t I?
    Also on a similar topic, I’m a registered organ donor but apparently that can be overturned by those left behind.
    I can give away all my wealth before I die to solve the first problem but my organs may be wasted…
    What’s happened to my freedom of choice…

    • I agree, sjdeez. And I’m particularly enraged at the manner in which the system operates to benefit those in the system and NOT to do what is right and fair. Anyone challenging a will usually does so at no risk because the estate has to pay for BOTH the challenge and the defense in most cases. Lawyers don’t even want to defend the estate because doing so reduces future claims and thus dollars in the pockets of those who make their living working in the system. Unless an estate is large, it will be totally eroded by a challenge so there’s no point in the executors suffering the stress and workload of trying to defend. And the nonsense using claimed ”need” as a criteria is just another way of rewarding greed, laziness and irresponsibility and punishing those who work hard and live responsibly. It’s a total disgrace.

      An acquaintance reported caring for his father for 20 years while his sister cut off all contact, breaking the old man’s heart. When the Will was read, sister marched into court declaring she was a recovering drug addict and broke and she got the lion’s share of the estate. How disgusting!
      I’ve heard one story after another like that.

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