Disentitling Conduct by Beneficiaries | Armstrong Legal

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This article was written by Sean Pascoe - Solicitor - Brisbane

Sean Pascoe completed a Bachelor of Business (Finance), a Bachelor of Laws, and a Graduate Diploma of Legal Practice at the Queensland University of Technology. He was admitted to practice in the Queensland Supreme Court in February 2020. Sean’s primary focus is in the area of wills and estates litigation. He also has experience in e-discovery and construction law. In...

Disentitling Conduct by Beneficiaries


Family disputes can be very complicated. Sometimes conflicts become so heated that a person might decide to cut their spouse, child or another dependent out of their will. However, family provision laws, which allow close family members to apply for better provision, throw a wrench into any plans to disinherit a person for their wrongdoing. Family provision laws reflect the moral obligation society places on certain people to provide for their dependents. This article examines the situations where the conduct of a potential beneficiary disentitles them to inheritance.

Disentitling conduct and family provision claims

Due to their origin in moral obligations, family provision claims can be resisted on the basis of some moral wrongdoing by the applicant. This is usually some action directed towards the deceased before death, but it can include conduct after death in certain circumstances.

The court can consider a broad range of character traits and conduct as disentitling, with the important limit that it must be considered reasonable by the general public. The court may refuse to award a person any benefit or reduce the benefit received. Any reduction or exclusion will be dependent on the severity of the disentitling conduct and the extent of the person’s financial need.

What is Disentitling Conduct?

Historically, adultery by an applicant spouse was the most commonly raised disentitling conduct. The case law in this area had developed to the point that it was an established rule that adultery by the deceased reduces the severity of the applicant’s adultery.  However, social attitudes have evolved and adultery is no longer considered disentitling conduct, particularly with the introduction of the no-fault family law system in the 1970s.

Case law has determined that the following do NOT disentitle an applicant from inheriting.

  • Applicant was an alcoholic
  • Applicant daughter married without her father’s consent
  • Applicant daughter had a child outside of marriage
  • Applicant changed religions

Statements in the Will

A will-maker who wishes to remove their child from the will can put a statement in the will that they wish to have the child removed from provision under the will.  Similarly, many will makers make statements held with their wills that explain 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 never be prepared without legal assistance. They can often work against the person defending a will.  For example, a common statement that we find is a statement that “my daughter never comes to see me.”  Analysing these statements in detail, they can be disproven for various reasons or explained. The daughter could say that she visited the deceased on particular dates.  It can also be explained, for example, if the child lives far away or is abused by another family member when they visit.

A common allegation that is raised in response to a child never visiting is that other family members “shut out” the child from seeing their parent.  We have had cases where well-meaning family members have added to a perceived distant relationship by refusing access to the will-maker, often without the knowledge of the will-maker.

Signal of dementia

It is common for willmakers in the early stages of dementia to fall out with members of their families.  An allegation of disentitling conduct, upon close analysis, can appear unreasonable.  In many cases, an allegation of disentitling conduct is made shortly before a formal diagnosis of dementia. While the will-maker may still possess the legal capacity to make a will, the health conditions of the will-maker may discount any disentitling conduct alleged.

What are the Effects of disentitling conduct?

Even if disentitling conduct is proven, it may not be sufficient to refrain from making provision for an applicant entirely. Family provision cases are usually divided into two broad categories.  The first category is where a person is ruled in or out of provision, which occurs only in the most extreme cases (for example, where there has been actual violence by the applicant against the will-maker).  The second category is where a person’s entitlements are assessed based on their conduct. While disentitling conduct may not be enough to remove provision for the applicant from the will maker’s estate entirely, the allegations surrounding it will be taken into account in the quantum of provision.  That is, alleged disentitling conduct is often reviewed in light of the actual amount of provision that is adequate and proper for the applicant.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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