I am often asked by clients about “disentitling conduct” in the context of a claim for further provision from an estate by a child of a deceased.

Clients generally raise with me things that the claimant has done to the deceased and the deceased’s family throughout the deceased’s lifetime, and want to know whether the claimant’s conduct disentitles them from making a claim.

What is disentitling conduct?

The essence of disentitling conduct is where a person treats a will maker so badly throughout their life time and they get left out of the will because of that conduct.

However, what actually amounts to disentitling conduct is up to the court. Currently the definition of what conduct is in fact disentitling is somewhat unclear, as most matters concerning disentitling conduct are settled at mediation, not making it to the court for a judge to consider and make law.

Example of Disentitling Conduct

It is clear from the recent case in Western Australia, Christie v Christie [2016] WASC 45, that physical violence toward a testator for a long period of time may well amount to disentitling conduct.

The facts of this case are:

1. the plaintiff was the only surviving son of the deceased. The defendant was the daughter of the plaintiff’s deceased sister (granddaughter of the deceased);

2. the plaintiff gave evidence which painted himself as the loving son, always trying to build a close relationship with his mother but for one reason or another his mother was always pushing him away. The plaintiff stated he was not a violent person and had never come to the attention of the police;

3. the defendant gave evidence of the plaintiff having a history of violence, being charged with a number of offences and being the subject of a violence restraining order;

4. the defendant went on to give evidence that she had had a conversation with the deceased whereby the deceased told her why she was estranged from the plaintiff. Some of the things done to the deceased over a long period of time by the plaintiff included:

• holding the deceased in a headlock, pushing her into walls and hitting her;
• grabbing the deceased around her throat, holding a cigarette lighter to her head threatening to set her on fire.

5. the defendant stated in her affidavit that the deceased had told her that she never went to the police and reported the plaintiff’s actions because in her day “you did not speak of these types of things”.

Master Sanderson was convinced that taking into account the history of the relationship between the plaintiff and the deceased, the plaintiff had been excluded from his mother’s will and her life because he treated her badly over a long period of time.

It is important to remember that where a claimant is estranged from the deceased, this does not automatically mean there has been disentitling conduct. Whether there has been conduct that is disentitling is determined by current attitudes and expectations in the community. The case of Christie v Christie shows that where there has been violence toward a testator over a long period of time, this may well amount to disentitling conduct.

If you have any concerns in relation to disentitling conduct, please do not hesitate to contact me.