Family Provision Applications – Disentitling Conduct

A family provision application for orders for further and better provision from a deceased person’s estate (whether leaving a Will or having died intestate) may in the Court’s discretion be refused an order if the Applicant’s character or conduct is such as to disentitle them to the benefit of an order under section 41(1) of the Succession Act 1981 (Qld).

Section 41 (2)(c) of the Succession Act does not contain a definition of disentitling conduct. Consequently, in both Queensland and other jurisdictions, Courts have been required to decide, on a case by case basis, whether or not an Applicant’s conduct warrants the refusal of orders for provision from a deceased’s estate.

Generally, disentitling conduct will concern: –

  1. Misconduct towards the deceased of such seriousness as to amount to a “comprehensive disregard and rejection of the deceased” or of “such a nature as to entitle the Court to say that the Applicant has forfeited or abandoned his or her moral claims on the testator”; or
  2. Conduct which demonstrates that any need is due to the Applicant’s own default.

The onus of proving the disentitling conduct rests with the executor or administrator defending the family provision application.  The stronger the Applicant’s case for relief, the more reprehensible the Applicant’s conduct must be to disentitle them from further provision from the estate.

If the disentitling conduct concerns the commission of criminal offences and/or serious immoral conduct, the Court will expect the evidence of this conduct to meet a higher standard of proof, cogency and weight.

Mere estrangement will not of itself amount to disentitling conduct. It may reduce the moral claim of the Applicant against the estate for their maintenance, support or advancement. Any lack of contact will require a consideration of the reasons for this, including the development of psychiatric or psychological conditions and the cause of these, for example.

Where disentitling conduct is proven, the Court is entitled to exercise its discretion to refuse to make provision from the estate. However, where an Applicant has proven he or she is in need of further provision, but suffers from an addiction to drugs for example, the Court may order provision subject to a trust or otherwise on conditions ensuring the Applicant’s needs are met.

There are few cases in Queensland where Courts have refused an Applicant relief due to disentitling conduct. Whether an Applicant or Respondent, careful consideration of any conduct or character must nevertheless be given at an early stage, relevant as it is to the extent of any moral claim against the deceased’s estate and potentially, a defense to any family provision application.

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