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.

Family provision laws reflect the moral obligation society places on certain people to provide for their dependents.

Disentitling conduct and family provision claims in NSW

Due to the emphasis on moral obligations in family provision claims, they can be resisted on the grounds of moral wrongdoing by the applicant. Disentitling conduct usually occurs before the deceased’s death, but in certain circumstances it can be after death.

The court can consider a broad range of conduct and character traits. The court 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.

What Is Disentitling Conduct?

Cases have established that the following do NOT prevent an applicant from inheriting:

1. applicant was an alcoholic;
2. applicant changed religions;
3. applicant daughter had a child outside of marriage; and
4. applicant daughter married without her father’s consent.

Statements in the Will

A will-maker (called a testator) who wishes to remove their child from their Will can put a statement in the Will that they wish to have the child removed from provision under the Will. Or they can make a statement 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 burden of proof is on the party resisting the family provision claim to prove the alleged disentitling conduct. Statements left with the Will are often admissible under specific rules to determine this issue but need to be treated with extreme caution.

A statement of this kind should not be prepared without legal assistance as they can work against the person defending a Will. For example, testators often complain that “my son never comes to see me.” Analysis of these statements can explain or disprove them for various reasons. The son could say that he visited the deceased on particular dates. It can also be explained if, for example, the child lives far away or is abused by another family member when they visit.

A response to an allegation that a child never visits may be that other well-meaning family members prevented the child from seeing their parent. By refusing the child access to the testator (often without their knowledge) family members may reinforce the testator’s perception of a distant relationship.

Signal of dementia

Testators in the early stages of dementia often allege disentitling conduct shortly before being formally diagnosed with dementia. Analysis can reveal such an allegation to be unreasonable. While the testator may still possess the legal capacity to make a Will, the testator’s health conditions may discount an allegation of disentitling conduct.

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. That is, the alleged disentitling conduct is reviewed in light of the actual amount of provision that is adequate and proper for the applicant; or
2. where a person is ruled in or out of provision, which occurs only in the most extreme cases (e.g. where the applicant has inflicted violence on the testator).

Takeaways

Defending a claim on an estate is an emotionally fraught and complex task.

Whether you are an executor or administrator defending a claim, or a beneficiary involved in the dispute, seeking advice from a lawyer who practices in estate litigation maximises your chance of avoiding drawn-out litigation and successfully resolving the dispute. They will be able to review the likelihood that the application will succeed and what defences may be available to the executor or administrator.

The focus needs to be on identifying the validity and merit of the claim, then negotiating an agreement as quickly as possible to preserve the estate’s value and assist all parties to move on with their lives.