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What Can I Do If I Have Been Disinherited?

When a testator makes changes to remove someone from their will, that person is disinherited. Anyone making a will in Australia can add or remove beneficiaries at any time. However, just because a person has the right to remove someone from his or her will, does not mean that the disinherited person cannot eventually receive provision from the deceased estate. There are legal avenues that a disinherited person can pursue to redress being disinherited from a will. This article defines what it means to be disinherited and explains what a disinherited person can do legally to contest a will.

What Does It Mean To Be Disinherited?

A disinherited person is someone who is deprived of the right to inherit from a deceased estate. A testator disinherits someone when they make a will that leaves no provision for an individual who was a beneficiary under a previous will, or who would be eligible to inherit if there was no will (that is if the estate was intestate).

Why Would Someone Be Disinherited?

A person is often disinherited because there is a relationship conflict, or because they have no current contact with the testator. For instance, a parent might have a disagreement over their adult child’s lifestyle, choices, religion or some other highly emotional issue. This leads to an ongoing estrangement, and the parent feels that they no longer have an obligation to provide for a child who is no longer an active presence in their life.

Sometimes a testator has a good reason to disinherit someone. Beyond the obvious estrangement and ill-feeling that occurs between family members, a testator might disinherit someone from a will in order to be fair to other potential beneficiaries. For example, a parent who has already given substantial assets to one child in the form of early inheritance may feel that it is only fair to leave their remaining assets to their other children.

The law has provisions to account for these circumstances. The question that the court will ask is what a reasonable testator would have done in the same set of circumstances. If a reasonable testator would have disinherited the individual, then the court will not disturb the provisions of the will.

Can A Child Be Disinherited In Australia?

In Australia, it is possible to create a will that disinherits a child. However, this may not stand up to a legal contest in court.

What To Do When Someone Is Disinherited

When someone has been disinherited from a will, there may still be a way to receive their fair provision. Certain family members and dependents are entitled to make a legal claim against a deceased estate when they have been disinherited. In New South Wales, for instance, the Succession Act 2006 allows a child and spouse of the deceased, as well as any financial dependent, to make a Family Provision Application to the Supreme Court of NSW.

The claimant will have to establish that they were wrongfully disinherited given their entitlement to inherit from the estate, and their own current and future financial needs. The court will consider each claim on its own merits, but keep in mind the impact that it will have on other beneficiaries and claimants against the estate. As noted above, the decision of the court will hinge on what a reasonable testator would have done in the circumstances of the particular case.

Equitable Proprietary Estoppel

There is another way that a disinherited person may reverse their fortunes. Crucially, this option is open to those who are not eligible to make a Family Provision claim against the estate. When someone was promised a bequest by the deceased and did not receive the promised gift in their will, they may have grounds to make a claim of equitable proprietary estoppel. Such a claim is made in equity (the so-called court of conscience) to protect injured parties who cannot rely on contractual law. This legal action is designed to provide recourse for those who have suffered damage because they relied on the word of someone else. For example, in Lewis v Lewis & Anor [2001], the Supreme Court of NSW upheld a claim of equitable proprietary estoppel after a deceased failed to keep their promise to make a testamentary gift. The court found that the deceased deliberately offered the gift with the intention that the claimant would act in reliance on this promise.

This type of claim is harder to prove on an evidentiary basis than a Family Provision Claim. The courts have noted that, by definition, this type of claim relies on one person’s recollection of events when the deceased cannot give their own version of what occurred. In Hyslop v Hyslop; Estate of Joyce Hyslop [2007], the Supreme Court of NSW emphasised that when a claimant alleges an agreement with a deceased person, the court will look for corroboration of this claim. The elements that a claimant must establish of a claim of equitable proprietary estoppel include:

  • That the testator promised the gift at some point in their lifetime;
  • That the claimant relied on the promise;
  • That the claimant has suffered detriment in relying on the promise; and
  • Given all these factors, it would be unconscionable for the deceased estate not to be bound by the promise.

When the claim is proven, the court can order that the gift became the claimant’s property from the moment that the testator made the promise, and it should therefore not be an asset of the deceased estate.

The Armstrong Legal Contested Wills Team can assist you if you have been disinherited. For advice on any wills and estates matter, please do not hesitate to communicate with the team on 1300 038 223.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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