When someone contests a Will after being left out or not getting what they feel is their fair share, it’s more often than not that the surviving family want to suggest that that person’s conduct doesn’t entitlement to more, or sometimes anything.
This is what us #lawnerds term as “disentitling conduct” in the context of family provision claims. As you likely already know, this particular space of family provision claim is of great interest to me and it’s one of my absolute favourite research areas. I have written multiple blog posts on these types of cases and a conference papers and what I’ve come to learn from those experiences is that the ‘threshold’ to fully disentitle someone from any inheritance, is incredibly high.
So, when the case of T v R & Anor  QDC 220 hit my list, I read, as always, with great interest as to the circumstances and story of this family. Although, as with all these cases, the family’s story was filled with what appeared to be a history full of difficult relationships, challenges, and tragedies and years of unrest between family members.
The case of T v R & Anor dealt with the issue of disentitling conduct in a family provision claim where a gentleman had left no provision for either of his children (a son and daughter). The testator, instead, choosing to benefit his grandchildren; giving his motor vehicle and funds in his bank accounts to his grandson (the applicant’s son) and the rest of his estate to his three granddaughters equally (his daughter’s children).
The testator’s son made a claim for further provision from the estate.
The estate value was approximately $400,000. The applicant was 52 years of age and in a very poor financial state and his only income was a disability support pension due a motor vehicle accident some years prior rendering him unable to work. The applicant also had two separate personal injury claims on foot, one from the motor vehicle accident and another from an alleged assault by a prison guard during his incarceration. Both proceedings were ongoing at the time of this claim. Notwithstanding this, the Court was satisfied that, although the applicant may receive an award of damages in one or both claims, this claim could proceed on the basis that the applicant was in poor financial circumstances and in need of support (para ).
The reasons why and evidence
In his Will, the testator explained that he had left no provision for his children as he was of the view that they were both financially stable. In respect of his son, the testator further explained hi decision to exclude him as they had not had any contact for 5 years and there was no relationship between them.
It was clear that the relationship between father and son had been an incredibly challenging one over many years, as the testator had typed a letter a few months before his passing providing some reasons as to why he had chose to exclude the applicant from his Will. These included:
- that they had had no contact for 12 years;
- that he did not want his son to ‘in anyway shape or form benefit from my estate, absolutely!’;
- that his only contact with him was when his son phoned him to post his bail and when he refused he was told that he ‘was no longer his father’;
- his son was in constant trouble with the law
- his son stole many valuable items from the family;
- he loaned his son money and none was ever repaid
- his son was violent towards his daughter many times
- his son assaulted his granddaughter and was convicted of those charges;
- his son had been in jail for 3 years on 22 different charges all resulting from one night while under the influence of drugs;
- that he and his family were afraid of his son and what violence he may inflict upon them.
The Court was provided with evidence of the applicant’s mother (who was the testator’s former wife) including a statutory declaration which was very similar to that of the testator’s typed document mentioned above. The mother had given evidence that she and the testator had spoken around the time of the testator’s typing his statement and both wanted their wills protected. The mother conceded that they had collaborated because they “didn’t want a situation like this”, referring to the present claim. The Court accepted this evidence and said that it “impressed me as forthright and honest evidence” (para 20) and noted the parents strong desires to disinherit their son and that the testator’s “collaboration with his wife is evidence of those intentions and his reasons for them”.
The executor of the estate also gave evidence that the testator had informed him that he did not want any death or funeral notice placed in the papers or any social media that might inform the applicant of his death. This wish was honoured by the executor.
The applicant’s credibility
‘The Court noted that the applicant’s conduct during the matter reflected poorly on his credibility. The Court undertook a considered assessment of the applicant’s credibility and reliability not only using his word during these proceedings, but also independent evidence; i.e. the assaults of which he was convicted.
The Court was ultimately not satisfied with the applicant’s credibility as the Court determined, after reviewing the evidence of the applicant, that the applicant’s was disingenuous and “prepared to make up untruths in elaborate detail in the hope of obtaining a favourable outcome”.
Of the applicant’s evidence, the Court said:
Therefore, whether his denials of the assault be true or untrue, either way one is led to the inevitable conclusion that the applicant is a person who is prepared to be untruthful and say whatever he believes will better his changes of achieving whatever end he is pursuing at the time. His evidence in respect of the issues of this application must, therefore, be treated with care.Paragraph .
What the Court said
The Court said that ‘freedom of testamentary disposition should be borne in mind in the determination of this case’ (para 168).
Noting the expression of a ‘moral claim’, the Court references Ormiston J in Collicoat & Ors v MacMillan & Anor  3 VR 803 at , where it was said:
In my opinion the expression ‘moral claim’ has always been treated as convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects the duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. What is right and proper and thus what the wise and just testator must do, is not determined by the ‘character and conduct’ of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behabiour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscineces entitled to make lessor or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances. Taking a practical example, a testator is obliged by reason of the legislation to make greater provision for a daughter who has spent many years at home with the testator than for a daughter who has left the home early and thereafter for no good reason has little or no contact with their parent. Compare Scales case, above. Even in the case of conduct disentitling the alleged behaivour must be looked at from the viewpoint of the testator and the test has been stated as requiring proof of defects in character or conduct of such a natura ‘as would ordinarily move a just spouse or father to take them into consideration when making his testamentary disposition‘: Wenn v Howard  VR 91 at 95.(Court’s emphasis added) Paragraph 
In coming to it’s conclusion, the Court said:
In this case when the conduct of the applicant is looked at from the viewpoint of the testator, it can be seen that the applicant’s behaviour did affect the testator such that he felt, in good conscience, that he should make no testamentary provision for his son. It is clear that he gave the issue much consideration. His decision was reflected, first, in his will made in 2014. The terms of clause 10 of the will clearly demonstrate that the testator gave consideration to whether he owed a moral or legal duty to provide for his son from his estate in the context of their relationship.
It was explained in detail in his letter of 5 June 2016. It was a matter discussed with his former wife, the applicant’s mother, with them both being resolved and determined to disinherit their son because of his conduct and the nature and extent of their respective relationships with him. It found further expression in his decision not to make provision for his daughter either within the will.
The testator’s reasons which caused him to determine to make no provision in his will for the applicant centred upon the absence of a relationship between them. That absence of a relationship was the direct function of the applicant’s conduct and character. Notwithstanding the applicant’s attempts in these proceedings to portray them as otherwise, I have found that the expressions of the testator about these matters in his will and in the letter of 5 June 2016 were his genuine and considered views held on reasonable grounds.
In the written submissions on behalf of the applicant, the submission is made that the applicant was the testator’s only son. This submission seems to suggest some primacy of obligation of a progenitor toward male progeny. To the extent that it may do so, I reject the suggestion. I also reject the suggestion (as it seems to be made) that this fact alone would cast an obligation upon the testator to provide for the applicant in his will and that in the absence of such provision will, of itself, carry the applicant across the threshold of the jurisdictional question.Paragraphs  – .
The Court held that the applicant had failed to meet the jurisdictional test in the two stage test in Singer v Berghouse  181 CLR 201.
Further, the Court said that even if the applicant had met the first stage of the test, the applicant’s conduct would have effected any assessment of quantum unfavourably.
Unsurprisingly with these types of conduct arguments, the legal costs of the proceedings were considerable and the Court was to hear the parties separately as to the costs matter. The costs equated to approximately 40% of the value of the estate.
I recommend the read of this decision, particularly as to the other evidence from friends and family of the background and the relationship between the testator and his son.
You can read the case here.