Disentitling Conduct

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Disentitling Conduct – Will Disputes & Family Provision Claims In NSW

This page provides information relating to disentitling conduct which may preclude an individual from benefiting from the estate of the deceased. 
Disentitling Conduct
Disallowed ConductEstrangement
Disallowed Conduct
Prohibited Conduct
  • Conduct that may preclude an individual from obtaining a Family Provision Order or even bring a Family Provision Claim.
  • Types of disentitling conduct include but not limited to the following:
    • Violence or theft against another spouse or member of the family;
    • Murder against another person;
    • Crimes against family members/relatives during the estate
    • Physical and mental abuse over a period of time is an example of disentitling conduct which would preclude an individual from claiming off the deceased’s estate.
Conduct that is not disentitling

The following factors have been considered by the Courts over a period of time and have been deemed not to be disentitling conduct:

  • Estrangement arising from a parent’s divorce if the Plaintiff is a minor;
  • Not adhering to a certain religion;
  • Marrying or having a relationship with someone of whom the deceased does not approve;
  • Any breakdowns in relationships between a child and a parent.
  • Failure to see relatives when they are sick or in hospital is not conduct which would disentitle an individual in bringing a Family Provision Claim.;
  • Estrangement caused by the conduct of the deceased.
  • Unproven allegations of incest;
  • A child living in a de facto relationship against their parents wishes
Recent Cases

Christie v Christie [2016] WASC 45

  • The substantive issue in this case was whether the Plaintiff’s conduct was disentitling to disallow a family provision order/application.
  • The Plaintiff in the proceedings was the surviving child of his recently deceased mother’s estate whilst the Defendant in the proceedings was the daughter of the Plaintiff’s deceased sister.
  • The Plaintiff was abusive towards the daughter during the whole relationships and subsequently brought a Family Provision Application.
  • The following orders were made:
    • Disentitling Conduct as per Sanderson’s ordered the following in relation to disentitling Conduct:
    • “In my view it has to take into account the history of the relationship between the claimant and the deceased. It is the broad scope of that relationship which I have looked at in reaching my conclusion”.
    • A person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate. The acts of violence reap their own reward. That is exactly what has happened in this case.”
Estrangement
Estrangment Issues
  • The cause of estrangement will be important but an assumption should not be taken when deciding fault. It would be appropriate to look at the causes of the estrangement and whether the actions of the parties can be justified.
  • Andrew v Andrew [2012] NSWCA 308 [57]:
    • Testator’s letter setting out reasons for disinheriting son not sufficient to disentitle the applicant, although poor state of relationship “operates to restrain amplitude in the provision to be ordered”.
    • Estrangement described as “the condition which results from the attitudes or conduct of one or both parties”.
  • Estrangement does not necessarily terminate a testator’s obligation to provide for an eligible person. It is emphasised however, that each claim for family provision is considered on its own facts and circumstances by the Court in exercising its discretionary jurisdiction.