Sometimes a family dispute becomes so heated that a person decides to cut their spouse, child or another dependent out of their Will. However, the family provision section of the Succession Act 2006 (NSW) throws a wrench into plans to disinherit a person for their wrongdoing by allowing close family members to apply for better provision.

Disentitling conduct and family provision claims

Due to the emphasis on moral obligations in family provision claims, they can be resisted on the grounds of moral wrongdoing by the applicant.

The court can consider a broad range of conduct and character traits and may refuse to award a person a benefit or reduce the benefit received. Any exclusion or reduction will depend on the extent of the person’s financial need, the severity of the disentitling conduct, and whether the general public would consider such conduct unreasonable.

Statements in the Will

A Will-maker (a testator) who wishes to remove their child from their Will can add a statement to the Will that they wish to have the child removed from provision under the Will. Or they can make a statement to be held with their Will explaining their lack of provision for a particular person. However, these statements do not finally determine the issue of family provision.

The party resisting a family provision claim must prove the alleged disentitling conduct.

A statement left with the Will should not be prepared without legal assistance as they can work against the person defending a Will.

What are the effects of disentitling conduct?

Even if disentitling conduct is proven, it may be insufficient for the court to refrain from making provision for an applicant. Family provision cases are usually divided into two broad categories:

1. where the applicant’s entitlements are assessed based on their conduct. Disentitling conduct may not be sufficient to entirely remove provision for the applicant from the testator’s estate, but the allegations of disentitling conduct are taken into account in the quantum of provision; or
2. where a person is ruled in or out of provision, which occurs only in the most extreme cases.

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