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Disowned From a Will

The word “disown”, which once meant to give up legal liability for someone, has no legal meaning in Australia today. The term is now used colloquially to refer to when a person is no longer acknowledged as a member of the family. A person who has been disowned is also often removed from the wills of family members. Although someone making a will (a testator) is free to disinherit a relative, the law may overrule these testamentary instructions so that an entitled person can receive a share of the deceased estate. The following article explains how someone who has been disinherited and disowned from a will can contest these last wishes and receive a fair and adequate provision from the deceased estate.

What Does It Mean To Be Disowned From A Will?

Testators in Australia have testamentary freedom to leave their property to whomever they wish and to arrange that certain people receive no provision. In this way, a testator can choose, for whatever reason, to disown a person who might otherwise expect to inherit because of their close family relationship.

How To Legally Dispute Being Disowned From A Will

Sometimes a testator will promise to leave an item of property to a specific person, and subsequently disown that person from their will. A disowned person should know that in that case, they may have legal recourse through a claim of equitable proprietary estoppel. A court may decide that the asset became the property of the claimant at the time it was promised to them, and it is therefore not included in the deceased estate.

A claimant must prove certain elements in order to successfully claim in this fashion, including:

  • The deceased made the promise during their lifetime;
  • The claimant relied on the promise;
  • In relying on this promise, the claimant has suffered detriment that is reasonable in the circumstances; and
  • Given these factors, it would be unconscionable for the deceased estate not to be bound by the promise.

A case in the Victorian Court of Appeal illustrates how these legal principles are applied in practice. In McNab v Graham [2017], the deceased made an oral promise to leave the plaintiff certain property in return for caring services. Ultimately the deceased left the plaintiff a life interest in the property. Under the will, upon the death of the plaintiff and his wife, the property would revert to a charity. The plaintiff approached the deceased’s solicitor and explained that he had been promised the property outright but was told that he had no chance of successfully contesting the will. The plaintiff and his wife resided in the property for fifteen years before bringing a claim against the estate for equitable proprietary estoppel. The Supreme Court found in favour of the plaintiff and ordered that the property be transferred over to them.

The executors appealed the decision to the Court of Appeal, but the appeal was dismissed because:

  • The deceased had repeatedly promised to leave the house to the plaintiff;
  • The plaintiff had reasonably relied upon the promise and suffered detriment as a result; and
  • The plaintiff had cared for the deceased on the expectation of the promise.

The Court of Appeal found that the circumstances indicated that there was a constructive trust over the property that had occurred when the plaintiffs began to care for the deceased.

Who Can Contest Being Disowned From A Will

It is most often estranged children who are disowned from their parent’s will. A testator in these circumstances sometimes chooses to favour more dutiful children or occasionally leaves their assets to other more distantly related relatives or charities. This can be problematic, as children have the right to contest being disowned from a will in every state and territory in Australia.

Certain people in every jurisdiction of Australia are entitled to make a claim against a deceased estate when they have been disowned from a will. For instance, in Victoria, select people close to the deceased can make a Testator’s Family Maintenance Claim. This includes the spouse or de facto partner of the deceased, and a legally recognised child or stepchild of the deceased. The only other person who is eligible to contest a will in Victoria is someone who was a registered carer for the deceased, or a grandchild or member of the household who can prove that they were financially dependent on the deceased before their death.

How To Contest A Will

An eligible person can dispute being disowned from a will by first contacting the executor of the estate. It is within the purview of the executor to recognise that a claimant has a legitimate claim against the estate and to provide adequate provision without recourse to a court proceeding. Otherwise, the disowned person can proceed with asking the Supreme Court in the jurisdiction to make an assessment of their legal claim to provision from the estate.

It can be a confronting situation to be disowned from a will. The first thing that a person should do is consult a qualified legal professional and find out if it is possible to contest the will as written. Our contested wills team can provide targeted advice and specialist representation during court proceedings. Please get in touch with the Armstrong Legal 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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