The power of section 100 statements: exploring the testator's choices in estate planning

 When a person creates a will, they have the power to decide who will inherit their property and assets after they pass away. In some cases, a testator may choose to exclude a child from their will, and in such cases, they may choose to include a statement explaining the reasons why the child was excluded.

If a testator chooses to exclude a child from their will, the distribution of their assets may nevertheless be open to a challenge from the excluded child under family provision laws (see our other blogs in relation to family provision).

However, to assist in understanding the reasons why such gifts were made (and to assist the estate in upholding the testator’s wishes), the testator can choose to make a specific statement addressing these reasons. This statement is commonly referred to as a "section 100 statement" (in reference to section 100 of the Succession Act 2006 (NSW)) and is either included in the will, or in a document separate to the will, to provide clarity about the testator's intentions.  If an excluded person challenge’s the Estate after the testator’s death, then the statement can be used as evidence in support of the testator’s wishes.

A section 100 statement can explain the reasons why the child was excluded from the will, such as strained relationships, past behaviour, or financial stability. The statement can provide evidence to support the testator's decision and help prevent any disputes that may arise after the testator's death.

For example, a testator may choose to exclude a child from their will due to a history of estrangement or neglect. In this case, the testator may choose to include a section 100 statement outlining the reasons why the child was excluded and providing evidence to support their decision. The statement can include details about the strained relationship between the testator and the child, such as instances of neglect, abuse, or lack of interest in maintaining a relationship.  In this respect, it is crucial to determine on whose part the estrangement arose.  If the estrangement arose because of the child’s actions or inactions (such as refusing to maintain any contact with the parent, despite the parent’s attempts to contact the child), then this will weigh heavily in support of the testator’s wishes.

Similarly, a testator may exclude a child from their will due to financial reasons. For example, if the child is financially stable and does not need the inheritance, the testator may choose to distribute their assets to other beneficiaries who may be in greater need. In this case, the testator can include a section 100 statement outlining their decision and providing evidence to support their reasoning.

In the 2022 case of Dodd v Dodd, the deceased’s only child, an adult son, made a family provision claim against his father’s estate which was left entirely to the deceased’s sister (the claimant’s aunt).  The deceased had draft a section 100 statement, explaining the reasons for excluding his son from his will on the grounds of animosity, an assault and an irretrievable breakdown of their relationship.  Evidence was presented to the Court of the son’s aggressive and violent conduct towards his father and their estrangement for a period of approximately 18 years before the deceased’s death, and even his “long and ugly criminal record” (as the Court described it).  The son argued that he was not estranged and that he was actively attempting to improve the relationship.  He blamed his conduct on his father’s alleged rejection of him in early childhood.

The Court looked at various issues, including whether there was an estrangement, whether the relationship was as described in the section 100 statement, and whether the nature of the relationship precluded further provision for the son out of his father’s estate.   The Court ordered that the son receive an amount of $520,000 from his father’s $800,000 estate.

In the earlier 2020 case of Ovens v Ovens, the testator made various gifts (including proceeds of sale when she sold parcels of real estate) during her lifetime to her sons and made unequal gifts in her Will.  The Court noted that the gifts made were consistent with the paragraphs in the section 100 Statement.  The Court noted:

“The deceased’s own written s100 statement made about [the time of making an earlier gift] suggests [excluding the claimant] was not her motivation. And her other oral statements do not provide support for the contention that this was her actual motivation. The evidence paints her as a considered woman who wanted the best for her children. So a desire to leave [the claimant] without adequate provision is not consistent with that outlook, nor are the terms of the Will she made in [the claimant]’s favour.”

In conclusion, a section 100 statement is a powerful tool that a testator can use to explain the reasons why a child was excluded from their will. This statement can provide clarity and evidence to support the testator's decision, in attempt to avoid or minimise any disputes or legal challenges that may arise after their death. And even though a family provision claim may still be successful, the testator’s section 100 statement may assist in minimising the value of the provision made to the claimant.