What is a Statement of Testamentary Intention?

A person’s will sets out their wishes for who shall inherit their assets after their passing.  However, at times a testator may decide to exclude an eligible person such as a child from their will, or they may distribute their assets amongst their children in unequal shares.  As a result, a disaffected child may pursue a Family Provision claim.

Faced with such a claim and to assist the Court to uphold a testator’s wishes and understand why they made certain bequests in their will or decided to exclude a child, it is helpful to explain such reasoning in a statement with respect to section 100 of the Succession Act 2006 (NSW), also known as a “Section 100 Statement” or “Statement of Testamentary Intention.”  This document is usually made at the same time as a will and signed simultaneously with the will.

A section 100 statement helps provide the Court with background context to the testator’s decisions in relation to eligible persons able to inherit from their estate.  For example, to explain why a child, has been excluded from a will, the testator may provide information such as a breakdown of relationship, lack of care, and previous behaviour and interactions.  Hence, it is also important to include details as to who instigated the complications or estrangement in the relationship, either due to the child’s actions or lack thereof (such as refusing to or having minimal  contact with a parent, despite the parent’s attempts to maintain a relationship).

A testator may also decide to exclude a child from their will if they have already provided prior financial assistance or property to the child in their lifetime.  Alternatively, a testator may choose to exclude a child on the basis that the child is financially stable whilst their other children may not be and thus would have a greater requirement for the financial assistance that an inheritance would provide.

A section 100 statement is only revealed to the Court or to a third party in the event that a claim against the estate is made.  If a claim is not made, then the statement is usually not disclosed.  However, it remains an important instrument in helping to protect the testator’s wishes in their will to help ensure their estate is distributed as they would have wanted.

Consequently, a section 100 statement is a useful document to make along with a will, to help protect a testator’s wishes and help explain the reasoning behind why certain gifts were provided.  As such, a section 100 statement can help in reducing the impact of a Family Provision claim if made.

For any assistance in relation to estate planning or estates generally don’t hesitate to contact wmd@wmdlaw.com.au or call our office on 02 9525 8688.