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When Are You Justified in Making Little or No Provision for a Child?

By Melissa Tucker

Our freedom to deal with our assets in our Wills is not entirely unfettered. In short, if we’ve got family members or others to whom we owe a moral duty to make provision in our Wills, then we must discharge that duty. If we don’t, the Courts do not hesitate to step in and correct our failure to make appropriate provision for those to whom we owe a moral duty at the expense of other beneficiaries.

Is it possible then for a person to whom we owe a moral duty to make provision in our Wills – to act in a manner so appalling as to justify being cut out entirely (something we lawyers call “conduct disentitling”)? While the answer is yes, the term “disentitling conduct” itself has given rise to uncertainty as to what exactly constitutes disentitling conduct.

It is clear from authorities that the following do not constitute disentitling conduct:

  • Estrangement arising from a parent’s divorce when the Plaintiff was a minor;
  • Estrangement caused by the conduct of the deceased;
  • Marrying someone of whom the deceased does not approve;
  • Ceasing to observe a religion;
  • A child acting otherwise than in accordance with a parent’s wishes (e.g choice of lifestyle);
  • A breakdown in the relationship between a child and a parent, even where that breakdown was largely caused by the child. This includes situations where there may have been little or no contact between the child and parent for many years leading up to the parent’s death;
  • Misappropriation of a parent’s assets by child may not be conduct disentitling, subject to the extent of the misappropriation;
  • Children refusing to see their father whilst he was in hospital with terminal cancer, and instead writing a letter to him explaining in the most pejorative terms the reasons for refusal, including that they did not consider him to be their father, was found not to be conduct disentitling.

Therefore, any action by the claimant which (while causing upset to the deceased) is not immoral or illegal is unlikely to be considered to be disentitling conduct.

The Court has held the stronger the claimant’s case for need, the more reprehensible the conduct must have been to disentitle them to the benefit of provision.

What has shown to be disentitling conduct is conduct that shows “the complete rejection or positive ill treatment of the parent/spouse by the child/spouse or a criminal act directed towards the parent/spouse.

Examples of this include:

  • Where there has been a substantial failure by the child/spouse to communicate with the deceased over a long period of time, including failing to meet any kind of needs of the deceased where the deceased was suffering ill health.
  • Where the child/spouse of the deceased has made continual threats of violence to the deceased or the deceased property.
  • Where the person has engaged in serious criminal activity for example murdering their parent/spouse.

It’s important to remember that there is no hard and fast rule with conduct disentitling. As with many matters legal, each case will depend largely upon its own circumstances. Nevertheless, many will be surprised that, in the circumstances described above, a testator can’t ‘disinherit’ the offending family member.

It is clear from the above, the Court appears loath to consider anything but the most extreme behaviour to be ‘conduct disentitling’. The conduct must be serious enough to justify total abandonment of the moral claim. Remembering, there are usually two sides to a story.

It is therefore necessary when a will maker wants to cut someone from their will that they understand the pitfalls that could follow. A claim by an aggrieved child/spouse could tie up the administration of the estate for an extra couple of years. It could cost both the estate and claimant in significant legal fees.

If you would like discuss your Estate Planning further please contact our Department Manager Lesley Barnes, on direct line (07) 5506 8241 or by email on lbarnes@attwoodmarshall.com.au to arrange an appointment.

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Melissa Tucker

Melissa Tucker

  • Senior Associate
  • Wills and Estates
  • Direct line: (07) 5553 5803
  • Mobile: 0411 046 805