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PA LAW • GAWLER & SOUTH AUSTRALIA
Leaving a Child Out of Your Will in SA: 7 Essential Checks
Unequal inheritances, estrangement, family provision and practical planning.
By Manal Amro, Principal Solicitor, PA Law Pty Ltd.
Published .
This article expands on PA Law’s one dollar Will myth video guide. It looks beyond the token gift to the decisions that can create difficulties: unequal support, a long estrangement, a second relationship, previous loans and assumptions about who owns the assets.
Leaving a child out of your Will: the South Australian position
South Australia recognises freedom to choose beneficiaries, subject to family provision law. A child falls within an eligible category under section 115 of the Succession Act 2023 (SA). Section 116 allows the court to order further provision where the statutory test is met.
The deceased’s wishes are the court’s primary consideration. It must also consider evidence of their reasons, the applicant’s vulnerability and dependence, contribution to the estate, and character and conduct. Other relevant matters may be considered. This is not an automatic equal-sharing exercise.
For a person making a Will, the practical starting point is a careful explanation of the intended outcome. “I want my children treated fairly” may mean equal shares to one person and recognition of different needs or earlier help to another. Tell your solicitor what fairness means to you and what facts underpin that view.
7 essential checks before leaving a child out of your Will
1. Separate unequal gifts from complete exclusion
Decide whether you intend to leave nothing, a smaller percentage, a particular asset or support through a different arrangement. Those instructions can produce very different results. Think about what each person could actually receive after debts, expenses and specific gifts are dealt with.
Ask your solicitor to explain the proposed distribution using current approximate values. Consider what would happen if the main asset were sold, a beneficiary died first or the estate were much smaller than expected. A plan should be understandable without relying on relatives to fill gaps or honour informal promises.
2. Explain estrangement with a factual history
If a relationship has broken down, prepare a brief chronology. Note significant events, contact, attempts to reconnect and any practical or financial support. Separate what you know personally from what others have told you. Bring relevant records rather than relying entirely on a label such as “estranged”.
Tell your solicitor about changes as well as past difficulties. A decision made during a dispute may need reconsideration after reconciliation, illness or new caring responsibilities. Discuss whether and how to communicate your intentions; a family meeting will not be appropriate in every situation.
3. Record your reasons accurately and independently
A record of reasons should explain the decision in your own words. Discuss where it should be kept, how it relates to the Will and when it should be updated. Avoid copying a generic declaration that promises to prevent challenges.
Give instructions directly to your solicitor. If someone is helping arrange the appointment, explain their role and allow time for a private discussion. Raise any concerns about memory, understanding, pressure or communication needs early, so the solicitor can consider an appropriate process. These issues concern the reliability of the instructions as well as the proposed gifts.
4. Account for previous gifts, loans and unpaid help
List significant assistance already provided: a property deposit, education costs, debt repayments or help with a business. Record approximate dates, amounts, recipients and any documents. Explain whether you intended that assistance to affect a later inheritance.
A loan and a gift should not be treated as interchangeable. Ask what should happen to an unpaid family loan when you die, and how that intention should be documented consistently. Our family gifts and loans guide provides questions to discuss. Also mention unpaid caring, work or other contributions that you want your solicitor to understand.
5. Check which assets your Will can actually distribute
A house held as joint tenants generally passes to the surviving joint owner. A tenant in common’s share can generally be dealt with by their Will. Check the title instead of assuming that paying half the expenses means you can leave half the house to a child. See the SA Government’s ownership guidance.
Superannuation also needs a separate review. It does not automatically follow the Will; payment depends on the applicable rules and any valid nomination. See ASIC Moneysmart’s super beneficiary guidance and our superannuation and Wills article.
Bring company and trust documents where relevant. Ask how control, ownership and debts fit together. Moving an asset or changing its ownership is not a routine shortcut: obtain advice about the legal, financial and tax consequences before making changes.
6. Work through blended-family and support needs
Where there is a partner and children from another relationship, distinguish immediate needs from eventual inheritance. Does someone need housing, an income or access to a particular asset? Should children receive something immediately, or later? What would happen if the partner moved, needed care or died?
Ask about the practical operation and administration costs of any proposed arrangement. Our right to reside article explores housing questions. Identify stepchildren and other family relationships expressly, because eligibility rules differ between categories. Do not assume that one family label answers every legal question.
7. Plan for review and workable administration
Discuss whether your intended executor is willing, available and equipped to handle the likely work. Consider possible conflicts if the executor is also a beneficiary receiving a substantially larger share. Ask about alternatives and how records will be available when needed.
Keep the signed original safe and let the appropriate person know where it is. Arrange a review after material changes in relationships, assets, health or responsibilities. Leaving a child out of your Will is a significant decision; the supporting instructions should remain current rather than describing a family situation that no longer exists.
A family provision claim is different from a validity dispute
| Issue | Question to investigate |
|---|---|
| Family provision | Has an eligible applicant received adequate provision under the legal test? |
| Will validity | Are there concerns about capacity, pressure, execution or whether the document represents the person’s Will? |
| Ownership or estate administration | Does an asset belong to the estate, and is the estate being administered appropriately? |
These issues can overlap, but they require different evidence and may involve different procedures and deadlines. An unequal gift alone does not establish that a Will is invalid. Explain the actual concern rather than assuming that every disagreement is the same kind of “Will contest”.
Example: earlier financial help and an unequal inheritance
Fictional example: Sam has two adult children. One received a substantial contribution towards a home. The other has provided regular practical support. Sam now wants to leave most of the estate to the second child and believes a small gift to the first will settle the issue.
A useful planning discussion would ask whether the earlier payment was a gift or loan, what records exist, what each child’s circumstances are, and what Sam intends to recognise. It would also check the ownership of Sam’s home, super nominations, debts and the likely funds available.
Suppose the main asset later needs to be sold to fund care. Would the proposed gifts still work as intended? If the relationship with either child changes, should the reasons be reviewed? The example shows why leaving a child out of your Will needs a complete planning conversation. It does not predict whether anyone would succeed in court.
What if someone has already died?
Check the deadline promptly. Under section 118, a family provision application must generally be made within six months after the grant of probate or administration. An extension requires the court’s decision, and an extension application must be made before final distribution. Do not assume that negotiations or writing to the executor stop time running.
If you are a potential applicant, gather the Will, grant details, correspondence and a clear account of your circumstances. If you are the executor, obtain advice before distributing assets where a claim is threatened or known. Ask about preserving documents, communicating with affected people and the appropriate response.
Tell the solicitor the date of death and about interstate connections. Ask about costs, evidence, settlement options and the scope of any advice before committing to proceedings. Do not assume that the estate will pay everyone’s costs. PA Law’s contesting a Will service and estate administration service explain how to make an enquiry.
Prepare for a Will review
You do not need to resolve every question before the appointment. A short, organised set of information will help your solicitor identify the decisions and documents that need attention.
- Your current Will and any codicils, plus the location of the originals.
- A family outline, including earlier relationships, stepchildren and anyone dependent on you.
- A broad asset and debt list, title details and super nominations.
- Records of significant gifts, family loans and contributions.
- Your intended beneficiaries and an explanation of any unequal gifts or exclusion.
- The names of proposed executors and your questions about practical administration.
Ask what work is included in the proposed fee, whether other advice is needed and what you must do after signing. Keep personal documents for the confidential appointment rather than posting family details in social media comments.
Leaving a child out of your Will: frequently asked questions
Can I leave a child out of my Will in South Australia?
You can make a Will excluding a child, but that does not prevent an eligible child from seeking family provision after your death. Get advice about your intentions, the people affected and the assets available.
Do I have to divide my estate equally between my children?
There is no general rule requiring equal gifts. Whether further provision should be ordered is a separate question from whether each child received the same amount.
Does leaving a child $1 prevent a claim?
No. A token gift does not automatically prevent a family provision claim. Nor does writing a child’s name into the Will remove the need to assess the wider circumstances.
Does estrangement mean an adult child cannot apply?
No. Estrangement does not automatically remove eligibility. The circumstances of the relationship can matter, and being eligible to apply does not guarantee an award.
Should I write a letter explaining why I excluded someone?
Discuss this with your solicitor. A carefully prepared record may help explain your intentions, but it cannot guarantee an outcome. Keep it accurate and review it when circumstances change.
Does my Will control all my superannuation?
Not automatically. A super death benefit is dealt with under the fund’s rules and applicable law, including any valid nomination. It may enter the estate if paid to your legal personal representative.
What should I do if I have already been left out of a Will?
Seek advice promptly. Provide the Will if available, the date of death, any grant details and correspondence. Ask your solicitor to check eligibility, the filing deadline, evidence, likely costs and possible resolution.
Can PA Law help with unequal inheritances and Will reviews?
PA Law assists clients in Gawler, Adelaide and across South Australia with preparing and reviewing Wills. Explain your proposed gifts, family circumstances and concerns so the scope of advice and costs can be discussed.
Watch the related PA Law video
Official sources and further reading
Sources checked on 19 October 2026. This article addresses South Australia; earlier deaths, interstate assets and individual circumstances may require different advice.
- Succession Act 2023 (SA), especially sections 115, 116, 118 and 119.
- Legal Services Commission SA: inadequate provision.
- Legal Services Commission SA: valid Wills.
- SA Government: property and land ownership types.
- ASIC Moneysmart: who gets your super if you die.
General information only, not legal advice. Obtain advice about your own documents, family circumstances, assets and deadlines before acting.