Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, recently joined Robyn Hyland on Radio 4CRB for “Law Talks” to discuss what the law has to say when a beneficiary or family member who has behaved terribly tries to contest their relative’s Will after being left with little or no provision in the estate.
Wills are contested for a variety of reasons. Whether it’s a dispute arising between siblings over what they consider is a fair distribution of their parent’s estate, or whether an adult child has been left out of their parent’s Will altogether; there are many reasons for estate disputes.
When it comes to someone contesting a Will or bringing a claim against the estate, a court will look at all the facts to determine whether that person should receive anything (or more than what they are to already receive in the Will) from the estate. In circumstances where someone has been left out of a Will for good reason, a court will look at the reason why the Will-maker omitted that person from their Will and whether the applicant’s character or conduct will constitute conduct that disentitles them from any provision from the estate. This is referred to as ‘disentitling conduct’.
What is disentitling conduct?
Disentitling conduct is where the court refuses to make an order in favour of any person making a family provision claim on the grounds that their character or conduct towards the deceased is so egregious or grave that, in the opinion of the court, they are not entitled to any provision from the estate.
From a legal standpoint, it is an argument by the Executors on behalf of the defendant estate to demonstrate that the deceased had a valid reason for leaving that person out of their Will or not providing for them to the extent that would be expected if that conduct was not a factor.
What type of conduct constitutes ‘disentitling conduct’?
Some examples of behaviour or acts that would be considered disentitling conduct may include:
- Estrangement or a malicious lack of contact with the deceased for an extended period (although, an important caveat for estrangement is that that in itself will not necessarily constitute ‘disentitling conduct’).
- Abuse – physical, emotional and financial
- Criminal conduct – acts of violence, physical assault, or committing other offences and threats to the deceased or their property.
Serious criminal offences that may not have necessarily targeted the deceased could also be considered disentitling conduct. For example, if an adult child was heavily involved in illegal drug activities, or if an adult child was in jail for criminal offences, which in turn caused the estrangement between themselves and their parent, then this too could be considered disentitling conduct.
Eligibility to make a family provision claim
The categories of persons who are eligible to bring a claim against a deceased estate varies slightly between each state and territory in Australia.
In Queensland, an eligible person can be:
- a spouse
- a child (which includes a natural, stepchild or adopted child)
- a category of persons who were dependent on the deceased at the time of their death.
In New South Wales, an eligible person can be:
- a spouse or de facto partner of the deceased at the time of their death
- a child of the deceased
- a person with whom the deceased was living in a close personal relationship
- a grandchild who was dependent on the deceased at any time during their life
- a person who was a member of the deceased’s household and was dependent on the deceased.
In Victoria, an eligible person can be:
- a current or former spouse or domestic partner
- a carer who was in a registered caring relationship with the deceased
- a child under the age of 18 years of age
- a child who was a full-time student aged between 18 and 25
- a child who has a disability
- a stepchild or adopted child of the deceased
- an adult child who has difficulty supporting their financial needs
- an assumed child.
No matter which state or territory, even if someone is considered an “eligible applicant”, if they have been violent, abusive, or have mistreated the deceased, this conduct can disentitle them from receiving provision from the estate, but it does not mean that they cannot make the claim in the first place.
Disentitling conduct must be in line with community standards and expectations
The court’s decision must be in line with current attitudes and expectations in the community. So, if someone’s behaviour is deemed unacceptable or poor in the eyes of the community, the law will make a determination in line with such standards.
For instance, elder abuse is a significant health and social issue in Australia. Parents may choose to omit their children from their Will for their despicable conduct towards them during their later years. Elder abuse can come in many forms – emotional abuse, physical abuse, and, more commonly, financial abuse. This behaviour is not always evident. However, elder abuse is a factor in whether a claimant’s conduct towards the deceased will constitute ‘disentitling conduct’. If a person has committed elder abuse against their parent, particularly if they have been found guilty and been incarcerated for their behaviour, then their conduct will be considered so grave as to disentitle them from provision.
“Bad behaviour” might not be disentitling conduct
The court will always consider the nature of the behaviour and determine whether it is severe enough to consider it as disentitling conduct. It must be in line with community standards and expectations.
Examples of where a court will not constitute disentitling conduct include:
- When a child has left home against their parent’s wishes;
- When a child marries someone without their parent’s consent or blessing;
- When a child lives a particular lifestyle which their parents do not approve;
- When a child practices religion against their parent’s beliefs, or perhaps the opposite, does not adopt or practice religion in line with their parent’s beliefs; or
- Lengthy periods of estrangement (in certain circumstances).
These issues can cause significant conflict in families and result in estrangement and rifts, however, when it comes to disentitling conduct and family provision claims, these types of issues would not be considered serious enough by a court to warrant someone being left out of a Will if they can demonstrate that they have need.
In family provision claims, allegations of estrangement can be tricky to navigate and often involve heightened emotions. It may not always be the fault of the person making the claim; the deceased may have been the one who initiated the estrangement. There are always two sides to every story, and these issues will be explored when a family provision application is made. It is important to note that estrangement alone will not necessarily constitute disentitling conduct.
There have been cases where children were estranged from their mother or father for over 30 years and, their family provision claims were still successful, and the court awarded them provision. Each case turns on its own facts.
Protecting your estate when excluding or writing someone out of your Will for bad behaviour
When dealing with complex family dynamics, you should always have your estate planning completed by an experienced estate planning lawyer. Someone who practices exclusively in this area of succession law will know how to identify risks and formulate strategies to reduce the likelihood of someone successfully contesting your Will or your estate after you have died.
Many generalist lawyers may offer their services to take instructions to draft a Will, however, they do not necessarily have the in-depth knowledge of succession law to be able to formulate the best strategy to mitigate the risk of the Will being contested in complex family structures.
In addition to a professionally drafted Will and estate plan, it is also recommended to leave proper supporting evidence for any decisions to leave someone out of a Will. This can help defend a claim if the time comes and that person makes an application for further provision.
The evidence can be created as a separate statement in a document or video to store alongside the Will.
Advice for an executor defending a family provision claim
Defending a claim on an estate is always an emotionally fraught and complex task.
Whether you are an executor defending a claim, or a beneficiary involved in the dispute, it is imperative to seek advice from someone who practices in estate litigation to give you the best chance of successfully resolving the dispute and avoiding drawn-out litigation.
An estate litigation lawyer will be able to review the likelihood that the person making the claim will succeed in their application or what possible defences may be available to the executor or administrator of the estate.
The focus needs to be on identifying if the claim is valid and has merit and then coming to an agreement at the earliest opportunity to preserve the estate’s value and assist all parties in moving on with their lives as quickly as possible.
Attwood Marshall Lawyers – experts in estate litigation
Attwood Marshall Lawyers have a highly experienced estate litigation team with senior lawyers who practice exclusively in this complex area of law. We have one of the largest Wills and Estates teams in Australia and receive referrals from other law firms on a regular basis.
Will disputes and Succession Law are complex issues, and when someone makes a family provision claim, emotions are generally running high. Therefore, it is important to get the right advice from a lawyer who can guide you through the dispute resolution process to help carry the burden and reduce conflict as much as possible.
If someone has proven to have disentitling conduct against the deceased, we can help uphold the deceased’s wishes and defend any claims made against the estate by that person.
For expert advice, please make an appointment with one of our lawyers today by contacting Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email firstname.lastname@example.org or free call 1800 621 071 any time.
Want to write someone out of your Will? Beware: the “black sheep” of the family may still be entitled to claim on your estate!