Disentitling Behavior in Family Provision Claims

What It Means and How It Can Impact Your Case

When making a family provision claim, the court considers not only the financial needs of the claimant but also their behavior towards the deceased. Disentitling behavior — such as physical abuse, financial misconduct, or estrangement — can significantly influence how much (if any) provision a claimant may receive from an estate.

In this blog, we will break down key examples of disentitling behavior, its legal impact on family provision claims, and the framework that guides court decisions under the Succession Act 2006 (NSW).

Examples of Disentitling Behavior

1. Physical or Emotional Abuse

Acts of violence or emotional abuse towards the deceased can be considered disentitling behaviour. For instance, in Georgopolous v Tsiokanis & Anor [2022] NSWSC 563, the court considered the claimant’s history of physical assault, damaging the property of the deceased, and threats against the deceased as disentitling conduct. The claimant had been abusive and violent towards the deceased, which led to estrangement. The court upheld the deceased’s wish to leave the claimant out of the Will, with the judge noting that a parent should not be expected to leave a significant provision to an adult child who had treated them in such a manner.

2. Financial Misconduct

Misappropriation of the deceased’s funds or other financial misconduct can also be considered disentitling. In Estate Kranjac; Cadden v Widdowson [2018] NSWSC 285, the claimant had misappropriated $26,000 from the deceased’s bank account and jewelry worth $100,000. While this financial misconduct was not enough to completely disqualify the claimant, it did factor into the court’s decision to reduce the amount of provision awarded.

3. Estrangement

Long periods of estrangement without reasonable cause can be considered disentitling. However, the impact of estrangement can vary. In Keep v Bourke [2012] NSWCA 64, despite a 38-year estrangement, the court still awarded the claimant a significant portion of the estate. The court considered other factors, such as the claimant’s financial needs and the size of the estate, highlighting the estrangement alone may not disqualify someone from receiving a provision.

How disentitling behavior affects family provision claims

Dismiss the Claim

In severe cases, the claimant may be disqualified from receiving any provision.

Reduce Provision

If the behavior is significant but not entirely disqualifying, the court may award a reduced share of the estate.

Consider Other Factors

The court will balance the claimant’s financial needs, the size of the estate, and the needs of other beneficiaries.

The Succession Act 2006 (NSW) outlines the court’s approach to family provision claims. While disentitling behavior is considered, it rarely serves as the sole reason for dismissing a claim if the claimant can demonstrate significant financial need. To carry weight, disentitling conduct must be backed by solid evidence — such as police reports, forensic accounting, or independent witness statements.

The court will also consider whether the disentitling behavior was a result of the deceased’s actions. For instance, was the estrangement caused by the deceased’s abusive behavior? If the claimant has a mental illness or disability that contributed to their behavior, the court may take a more lenient approach.

In conclusion, while disentitling behavior can impact the outcome of a family provision claim, it is seldom fatal to the case if there are other compelling factors, such as financial need. The court will assess each case in context, weighing the conduct against the claimant’s overall situation.

If you’re involved in a family provision claim, it’s crucial to seek legal advice to understand how your behavior may affect your case. With professional guidance, you can present your case effectively and increase your chances of a fair outcome.

Need Help with Your Family Provision Claim?

At Allwright Bourke Lawyers & Conveyancing, our experienced legal team can help you navigate the complexities of family provision claims and disentitling behavior. Contact us today at admin@allwrightbourke.com.au for expert advice and support.

Reference: Georgopoulos v Tsiokanis [2022] NSWSC 563, Estate Kranjac; Cadden v Widdowson [2018] NSWSC 285, Keep v Bourke [2012] NSWCA 64, Succession Act 2006 (NSW)