28/08/2018

Does violence towards the deceased end the relative’s chances of a successful claim against the Will?

It doesn’t matter what sort of ‘family’ unit you have – nuclear, blended or a step-family – family relationships can be challenging and complicated.

It’s usually not until a testator has passed away that their estate becomes disputed and these complex and difficult relationships are brought to the forefront often by a disgruntled child or spouse who has been left out of the testator’s Will.

While a person can deal with their property and make provisions to whomever they wish in their Will, this freedom is not entirely unfettered. Each of the States and Territories have legislation imposing a statutory obligation on the testator to make adequate provisions for family members and dependents in their Will.

Often under that legislation (different laws in different jurisdictions) a spouse (married or de facto), child (including step-children and legally adopted children) or dependent that has been left out of a will has the right, by law, to contest the will.

What actually amounts to disentitling conduct is up to the court. However, the conduct must be severe as to disentitle a spouse, child or dependent from the testator’s estate.

In the Western Australia case of Christie v Christie [2016] the court looked at whether physical violence towards a testator was conduct severe enough to constitute disentitling conduct.

In this case, the plaintiff was the only surviving son of the deceased and the defendant was the granddaughter of the deceased. While there was a long period of estrangement between the deceased and the plaintiff, the plaintiff gave evidence which painted him as a loving son who was trying to establish a close relationship with his mother. He provided further evidence stating that he was not a violent person and that he had never come to the attention of the police.

The defendant had a different story and gave evidence which showed that the deceased’s son had a history of violence, that he had been charged with a number of offences, and was the subject of a violence restraining order. The defendant also claimed that the plaintiff had been physically violent towards the deceased.

The court considered the history of the relationship between the plaintiff and the deceased as well as the physical violence towards the deceased. The court was convinced that this was the reason behind the plaintiff being excluded from his mother’s will. As a result, the plaintiff’s claim was denied.

This case demonstrates that where a claimant is estranged from the deceased, this does not automatically mean there has been disentitling conduct. What constitutes disentitling conduct is to be determined by current attitudes and expectations in the community. Here, the court looked at the severity of the conduct and held that violence towards a testator can amount to disentitling conduct.

If you have any concerns regarding disentailing conduct, or would like further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222 or info@townsendslaw.com.au to see how we can assist.