Can I dis­in­her­it my way­ward child from my will?… You may be surprised!

In Brief

Who can make a claim against your estate? What needs to be estab­lished by the appli­cant? What will the court con­sid­er? Read on as we answer these impor­tant ques­tions along with proac­tive strate­gies to help pro­tect your estate.

Who can make a claim?

Chap­ter 3 of the Suc­ces­sion Act 2006 (Act) empow­ers cer­tain per­sons, to make a claim against your estate where ade­quate pro­vi­sion is not made for them under your Will.

The Act enti­tles the fol­low­ing class­es of per­sons to apply to the Court for a fam­i­ly pro­vi­sion order:

(a) wife or hus­band of deceased person,
(b) de fac­to part­ner of deceased person,
(c) child of the deceased person,
(d) for­mer wife or hus­band of the deceased person,
(e) a person:

(i) who was, at any par­tic­u­lar time, whol­ly or part­ly depen­dent on the deceased per­son, and
(ii) who is a grand­child of the deceased per­son, or was a mem­ber of the house­hold of which the deceased per­son was a member,

(f) a per­son with whom the deceased per­son was liv­ing in a close per­son­al rela­tion­ship at the time of the deceased person’s death.

What needs to be estab­lished by the applicant?

In suc­cess­ful­ly mak­ing a Fam­i­ly Pro­vi­sion claim the appli­cant will need to estab­lish that the pro­vi­sion made under the deceased’s Will, if any­thing, was inad­e­quate for the appli­can­t’s prop­er main­te­nance, edu­ca­tion and advance­ment in life.

What will the court consider?

In Singer v Berghouse the High Court ruled that a two-stage process is required to assess a claim for pro­vi­sion under fam­i­ly pro­vi­sion legislation.

Stage One

The first stage con­sid­ers whether the pro­vi­sion made, if at all, was inad­e­quate hav­ing regard to, amongst oth­er things; the finan­cial posi­tion of the appli­cant, the nature and size of the deceased’s estate, the total­i­ty of the rela­tion­ship between the appli­cant and the deceased, and the strength of the appli­can­t’s claim when com­pared with oth­er com­pet­ing claims against the estate of the deceased.

Stage Two

The sec­ond stage is only con­sid­ered if the Court forms the opin­ion at stage one that the pro­vi­sion was inad­e­quate. The sec­ond stage requires the Court to decide what pro­vi­sion will be made out of the deceased’s estate for the appli­cant. This stage involves the exer­cise of dis­cre­tion by the Court.

There are cir­cum­stances where the Court will refuse to make an order (at stage 2) notwith­stand­ing that the appli­cant was found to have been left with­out ade­quate pro­vi­sion for prop­er main­te­nance (at stage 1). For instance, a mat­ter the Court may have regard to when con­sid­er­ing whether the appli­cant is an eli­gi­ble per­son and whether to make a fam­i­ly pro­vi­sion order includes assess­ing the char­ac­ter and con­duct of the appli­cant before and after the date of death of the deceased, what is known as dis­en­ti­tling con­duct”. Con­duct that is dis­en­ti­tling is dif­fi­cult to define. While fam­i­ly estrange­ment is a com­mon cause for seek­ing a Fam­i­ly Pro­vi­sion order there are rare instances where the Court has failed to find in favour of the applicant. 

Con­duct that the Court has found did not amount to dis­en­ti­tling con­duct includes the break­down of the rela­tion­ship between par­ent and child, even when the child caused the break­down, or even the mur­der of the deceased by a child. How­ev­er, while the Court found in Andrew v Andrew that the tes­ta­tor’s let­ter set­ting out the rea­sons for fail­ing to make pro­vi­sion for his son was not suf­fi­cient to dis­en­ti­tle his son, the poor state of the rela­tion­ship operate[d] to restrain the ampli­tude in the pro­vi­sion to be ordered”. So while the Court may find in favour of the appli­cant the pro­vi­sion that the Court may order could be reduced due to the con­duct of the applicant.

Time lim­it for claims

An appli­cant has 12 months from the date of death of the deceased to make a claim against the deceased’s estate. The Court may grant an exten­sion of time where a suf­fi­cient cause’ is shown.

Be proac­tive — strate­gies to help pro­tect your estate 

Hav­ing your Will draft­ed by a skilled lawyer trained in the area of Wills and Estates can help min­imise the chances of a claim being made against your estate. We are see­ing more and more fam­i­ly pro­vi­sion mat­ters com­ing through our doors at Swaab, and in many cas­es, the Wills are almost always pre­pared by peo­ple them­selves, with­out the assis­tance of a solic­i­tor, using Will Kits or oth­er basic doc­u­ments, or pre­pared by lawyers who are not experts in the area of Wills and Estates. No solic­i­tor will be able to pre­vent a claim alto­geth­er (unless a spe­cif­ic Court ordered release is obtained before death), but there is a lot that we can do to min­imise the risk, and to ensure that our clients under­stand the risks, hav­ing regard to their own per­son­al circumstances.