10 Oct 2016

Disentitling conduct in an estate claim

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A court has the power to dismiss an estate claim where the claimant has behaved badly. This is called ‘disentitling conduct’.

From time to time in an estate claim, a party alleges that the claimant should not get any more from the estate because of the claimant’s bad behaviour.

Or, the deceased may have left nothing, or very little, to the claimant because of that behaviour.

This is called “disentitling conduct”.

This is a broad category. It can include estrangement, mistreatment, and abuse of the deceased.  It can even include criminal conduct.

If proved, the court has the power to dismiss the estate claim.  Section 6 (3) of the Family Provision Act states:

The Court may … refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order[emphasis added]

The Supreme Court of Western Australia recently considered conduct of this nature.

In that case, the claimant had been left out of his late mother’s will entirely. There was no dispute that the provision for the claimant was inadequate.

He was described as “destitute, [having] no assets and his future prospects were bleak”.

However, he was also accused of being violent towards the deceased.  There were serious allegations of abuse and physical assaults.

“The acts of violence reap their own reward”

The Master accepted the evidence of the violence, and dismissed the claim as a result.  The Master said:

Violence against women is never acceptable. It is at odds with a basic tenet of civilised society. The criminal law in recent times has recognised the unacceptable nature of such conduct and imposed harsh penalties. 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.

We can see some useful principles in the decision.  One is that the question of disentitling conduct is to be judged “according to current attitudes and expectations in the community”.

This is a holistic approach.  It is not confined to notions of what might have been considered “acceptable” behaviour in the past.

Another is that the court will not put itself in the deceased’s shoes when considering the matter.  It does not consider the question as a “wise and just testator”, it is the court’s objective decision alone.

Not all bad behaviour is disentitling

If you are a beneficiary and intend to allege disentitling conduct by a claimant, think carefully.  You need to consider the nature of the behaviour, and whether it is serious enough that a court will consider it disentitling.

Whilst the court found disentitling conduct in the case above, there appears to be a general reluctance to find such conduct. Not all bad behaviour is disentitling.

There can be serious costs consequences from unsuccessfully opposing a claim.

You also need to give thought to whether you can prove the behaviour in the absence of the primary witness – the deceased.

If you are considering leaving a close family member out of your will, you need to take careful legal advice.  If you omit them completely, you greatly increase the likelihood of an estate claim after your death.  You need to weigh up this risk.

It is also important to leave proper supporting evidence for the decision. This can be in the will itself, or in a separate statement.

Recent changes to the Act have made it easier to use such statements in a subsequent court case.  This was alongside changes to the provisions dealing with stepchildren.

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About the Author


Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

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