If you have been excluded from a Will or have received an inheritance that does not meet your proper maintenance and support, then you may have standing to bring a Family Provision Application. For more detail, please read our “Contesting a Will, Part One: Family Provision Application” article.
There are five jurisdictions in Australia, including Queensland, where the Court may refuse to make an order for further provision out of the estate because the claimant’s character or conduct disentitles him or her to the benefit of an order, or if the refusal to include the claimant in the Will was reasonable in the circumstances.
What is “disentitling conduct”? How bad does the conduct have to be?
Generally, disentitling conduct will reduce the distribution that a claimant will receive from an estate rather than exclude the claimant entirely. As a rule of thumb, the stronger the case for further provision from the estate, the more reprehensible the conduct must be to reduce the claim or exclude the claimant. The onus of evidencing the disentitling conduct rests on the person who is opposing the Application (ie. the Personal Representative of the estate or another beneficiary of the estate).
It might surprise you as to what the Court has found not to be disentitling conduct. Adultery by a spouse, misappropriation of a parent’s assets by a child, and children refusing to see their terminally ill parent in hospital have all been held not to be disentitling conduct by the Court. However, each case will turn on its own facts and circumstances.
Some examples of behaviour that the Courts have found to be disentitling conduct include:
- chronic drunkenness;
- dishonesty in business;
- conviction of murder; and
- continuous domestic violence against the deceased.
Haven’t spoken in years? What about estrangement?
Family estrangement is an emotional distancing between two family members. Often this occurs over a number of years. Estrangement between the deceased and the claimant may impact their moral claim against the estate.
That being said, estrangement or even hostility does not necessarily bring an end to the moral duty of the deceased to make provision for an eligible claimant. Who is responsible for the estrangement is relevant to the Court’s considerations, and if the claimant is largely responsible for the estrangement then this will weaken their claim against the estate.
Want to talk about your options?
Contact one of our succession law team members today and we can sit down to discuss your circumstances and what we can help you achieve.