An ‘eligible person’ (as defined in the Succession Act 2006 (NSW)) (‘the Act’) has the right to bring a claim for a family provision order where he or she has been left out of a will or where inadequate provision has been made.
There is a non-exhaustive list of considerations the Court may take into account in deciding whether to make a family provision order in favour of the applicant. We focus here on what has come to be known in case law as ‘disentitling conduct’: that is conduct by an applicant towards the deceased person which the Court considers, in accordance with community standards and expectations, to be so serious that the applicant is unworthy of any moral claim on the deceased’s estate.
It should be understood that long term estrangement in and of itself may not necessarily be recognised by the Court as sufficiently serious to amount to disentitling conduct, particularly in circumstances where the deceased had been the cause of the estrangement.
What does the Court Consider to be Disentitling Conduct?
When considering whether to make a family provision order in favour of an applicant the Court may consider the character and conduct of the applicant before and after the date of the death of the deceased person in deciding whether or not the behaviour is so serious as to remove their moral claim on the deceased’s estate. Some examples of the types of behaviours which the Court has determined to be disentitling conduct by an applicant include:
- Chronic drunkenness;
- A child murdering the deceased (parricide);
- Chronic domestic violence against the deceased that is unexplained by mental health issues;
- Long-term estrangement where the child has made no effort to communicate with the parent;
- Cruelty and unkindness towards the deceased person.
Disentitling Conduct as a Defence to a Claim
The burden of proving disentitling conduct is upon the estate in defending a claim for a family provision order. The Court will consider the applicant’s conduct against what are believed to be current community expectations and standards of moral behaviour. The threshold is quite high. Even long term estrangement and hostility towards a deceased person have been found not to remove the deceased’s moral duty to their children or dependants. Historically, Courts have been very reluctant to completely disentitle an eligible person from receiving provision from an estate unless their conduct was proven to be reprehensible.
In the two cases below the Court considered the applicants’ conduct so serious as to amount to disentitling conduct, and in each case the applicants failed.
Christie v Christie  WASC 45 was a case in the Supreme Court of Western Australia where the Court considered the applicant’s conduct towards his late mother fell so far below community expectations and standards of moral behaviour that it refused his claim.
The applicant was the deceased’s son and only surviving child. There was no dispute as to his eligibility to make a claim for a family provision order. His needs were great. He was destitute with no assets and his prospects were described as ‘bleak’. The estate was reasonably substantial, valued at $900,000.00 of which the family home was the major asset. On the face of the application the claim was very strong.
However, the evidence established that the applicant had been left out of the will because of several years of physical violence and abuse by him towards the deceased. The evidence put forward by the estate in this regard was accepted by the Court as so serious as to deprive the applicant of any moral claim on his mother’s estate, and his claim was refused. The Court noted that ‘violence towards women is never acceptable’ and that ‘the acts of violence reap their own rewards’.
In Larkin v Leech-Larkin  NSWSC 1417, a case in the NSW Supreme Court, the applicant’s claim for a family provision order failed because of a long period of estrangement from the deceased.
The deceased had four sons. She separated from her husband in 1983 and the separation was particularly bitter. The deceased harboured severe resentment toward her ex-husband. Even 20 years after his death, the deceased continued to blame him for the marriage breakdown. The three younger sons had little or no contact with their father.
The oldest son, Julian, had contact with his father and his refusal to sever the contact caused conflict and finally an estrangement between him and his mother, the deceased. The deceased had contacted Julian by telephone many times over the years, but the phone calls would soon turn to the subject of her estranged husband and her disappointment in Julian. He would either hang up on her or put the phone down and walk away. The deceased also wrote to Julian on three occasions. The court found the letters to be ‘censorious and hectoring’ and full of criticism of Julian.
Lucien, the second of the deceased’s sons had a particularly close relationship with his mother. They lived together in her property in the Blue Mountains. Among other things, they shared a passion for the arts, antiques and gardening. They bought antiques and created a lavish French inspired garden on the property. Lucien had also poured his life savings into their various projects. He had contributed greatly to the deceased’s financial and emotional well-being.
The deceased was diagnosed with cancer in 2012 and died in 2015 aged 88 years. In her last will made in 2013 she left her entire estate to her son Lucien in recognition of his contribution and close relationship with her. The estate was valued at $680,000.00.
Julian made a claim for a family provision order. At the time of the Court’s decision he was 68 years old. He had been a registered nurse but suffered with morbid obesity and had a permanent disability. He was in financial need and his children had been subsidising his living expenses. The court found no real evidence of active misconduct towards the deceased.
The Court refused Julian’s application on the basis that Lucien had poured his entire fortune into enterprises with the deceased and if it awarded Julian any provision out of the estate, Lucien would be left with too little to continue to live in the Blue Mountains property, which is what the deceased wanted for him. Conversely, Julian had been estranged from the deceased for over forty years and made no effort to contact her during this time and he had contributed nothing to her emotionally or financially.
If you have been left out of a will or believe you have not been fairly provided for in a will, you should seek advice from a qualified legal professional who is experienced in family provision litigation. Contact the Law Office of Conrad Curry for a no obligation initial conference. All matters conducted on a no win no fee basis.