Conduct disentitling – is it a myth? Can a testator disinherit a ‘black sheep’ and give it to charity instead?

March, 2011

Let’s assume you’re a charity and you receive a gift from a generous testator.

You are subsequently notified by the executor of the Will that, having been cut out of the deceased’s Will, one of the deceased’s children has made a family provision claim.
It comes to light that the deceased felt that he was treated very badly by the disinherited child, and was perhaps even physically assaulted by him. The child was the ‘black sheep’ of the family.

Can you rely on the deceased’s entitlement to leave his estate as he chooses, and expect to receive the gift in full and without interference by the Court?

There are two broad issues which arise here.  The first is the extent to which we in Australia enjoy testamentary freedom.  The second is what sort of conduct is so egregious as to warrant a close family member (spouse, de facto spouse or child) being left out of the deceased’s Will.

Testamentary freedom is an issue for another day and another article. For present purposes it is enough to know that our freedom to deal with our assets in our Wills is not entirely unfettered. In short, if we’ve got family members or others to whom we owe a moral duty to make provision in our Wills, then we must discharge that duty. If we don’t, the Courts do not hesitate to step in and correct our failure to make appropriate provision for those to whom we owe a moral duty – often at the expense of charity beneficiaries.

Is it possible for a person – to whom we owe a moral duty to make provision in our Wills – to act in a manner so appalling as to justify being cut out entirely (something we lawyers call “conduct disentitling”)?

The murder of a testator by a person who is eligible to make a family provision claim on the testator’s estate can safely be assumed to be conduct disentitling. Beyond that though, conduct disentitling is not so easy to define.  Perhaps the best way to approach what amounts to conduct disentitling is not to attempt to define it, but rather to look at examples of what has been found by the Courts not to be conduct disentitling.

Adultery by a spouse, of itself, is unlikely to constitute conduct disentitling. A child acting otherwise than in accordance with a parent’s wishes (e.g. choice of spouse, choice of lifestyle), is not conduct disentitling.

A breakdown in the relationship between a child and a parent, even where that breakdown was largely caused by the child, is unlikely to be conduct disentitling. This includes situations where there may have been little or no contact between the child and parent for many years leading up to the parent’s death.

Violence perpetrated by a child on his elderly and frail parents is not necessarily conduct disentitling. Of course, the frequency of such incidents will be a relevant factor here.
Misappropriation of a parent’s assets by a child may not be conduct disentitling, subject to the extent of the misappropriation.

Children refusing to see their father whilst he was in hospital with terminal cancer, and instead writing letters to him explaining in the most pejorative terms the reasons for refusal, including that the they did not consider him to be their “father”, was found not to be conduct disentitling.

It’s important to remember that there is no hard and fast rule with conduct disentitling. As with many matters legal, each case will depend largely upon its own circumstances. Nevertheless, many will be surprised that, in the circumstances described above, a testator can’t ‘disinherit’ the offending family member.

Charities are often named as beneficiaries in Wills where a testator wants to cut out a close family member, or reduce that family member’s entitlement from what it might otherwise have been.

What does a charity do when faced with a family provision claim by this ‘black sheep’ of the family?

When providing your views to the executor and considering settlement, by all means respect the testator’s wishes, but do so with a weather eye to the way in which the Court deals with claims of conduct disentitling. As is clear from the above, the Court appears loath to consider anything but the most extreme behaviour to be ‘conduct disentitling’.

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