A will maker will usually be warned by their lawyer about the risks of not including an entitled person in their will. If an entitled person, spouse, child or dependent, is omitted, or not adequately provided for in a will then they may make a court claim for compensation against the estate. What a will maker will not normally be told, is that even if an eligible person makes a claim, the applicant’s claim may not be successful. If the applicant’s behaviour was so bad towards the will maker during the will maker’s lifetime, then any entitlement they may have had may be forfeited. There are two terms used to describe such bad behaviour – disentitling conduct and the forfeiture rule.

What is disentitling conduct?

Disentitling conduct describes an action or actions undertaken by an entitled person that are severe enough that the will maker would not be expected to provide them any benefit under the will. Simply put, a person’s actions towards the will maker was so bad that the action resulted in the will maker leaving the person out of their will.

This principle is provided for under section 41(2)(c) of the Succession Act 1981 (Qld), as the court has the power to refuse to make an order in favour of an entitled person whose character or conduct disentitled the entitled person to a benefit to the will maker’s estate.

What amounts to disentitling conduct?

There is no minimum threshold as to what actions would be considered as disentitling conduct. Disentitling conduct will be considered on a case by case basis. This is because:

  • no relationship is ever the same – for example the amount of financial dependency the applicant may have on the will maker for a certain period of time; and
  • each will maker’s assets will have different values – some will makers have higher amount of assets that may be distributed.

As a general rule of thumb, the conduct needs to be an action or actions made by the entitled person which were intended to cease the relationship between the entitled person and the will maker. The will maker should not have encouraged or contributed to the entitled person’s bad actions. Some actions that have been considered disentitling conduct includes:

  • continuous domestic violence towards the will maker; or
  • a child rejecting or mistreating their parent.

Estrangement – Case by Case Basis

Estrangement, as a basis for disentitling conduct, seems to be a grey area for whether it is disentitling conduct. Relying on estrangement as a reason for disentitling conduct will result in the court looking at the surrounding circumstances of both the entitled person and the will maker. Circumstances that will be taken into account includes:

  • was the entitled person considered a “lame duck” – that is, the entitled person had no means for financially supporting themselves and would reasonably be expected to rely on the will maker for financial maintenance;
  • how much is the will maker’s estate worth; and
  • did any other beneficiary contribute to increasing the will maker’s estate worth, as their contribution should be included in their entitlement.

Therefore, relying on estrangement as disentitling conduct will not always be upheld by the court as a valid reason the entitled person should receive little to no entitlement to the estate proceeds. If estrangement is the only reason, then the person defending the entitled person’s claim, the representative of the will maker’s estate, should look at the above circumstances for assistance in determining how the Court will consider the application.

The Forfeiture Rule

The forfeiture rule is a common law concept concerning a beneficiary’s automatic surrendering of an entitlement to an estate. If a beneficiary was involved in the killing of the deceased, or another beneficiary to the deceased’s estate, then the forfeiture rule applies and the beneficiary does not obtain any benefit they were entitled to in the deceased’s estate.

The key item to consider is killing the deceased. This does not limit the beneficiary’s action to murder. The forfeiture rule will extend to a person who assisted in committing suicide, regardless of whether it was the deceased’s wishes for the beneficiary to assist the will maker in committing suicide.

It is also important to note that the forfeiture rule may still apply even if a criminal conviction has not been recorded. If in a civil proceedings, there is sufficient evidence that on the balance of probabilities, the beneficiary did kill the deceased, then the court can make an order preventing the beneficiary from inheriting any interest in the deceased estate, even without a criminal conviction.

The beneficiary will forfeit any gift or entitlement obtained from the deceased, including joint tenancy interest in a property, entitlement to superannuation or residual estate proceeds and the ability to act as executor of administrator of the deceased’s estate.

Why should you have a lawyer draft your will?

Having a lawyer draft your will can provide significant cost expenses when litigating the estate. A lawyer will be able to assist the will maker in foreseeing how the court may evaluate any fractured relationship, more particularly, if the potential beneficiary’s actions have amounted to disentitling conduct.

Nevertheless, previous court decisions highlight that it is difficult to prove that someone’s actions were so bad that it disentitled them from receiving any provision from the will maker’s estate. The greater the entitled person’s need to obtain to receive an entitlement from the will maker’s estate, the more severe the conduct needs to be to be considered disentitling. Therefore, writing an entitled person out of your will should not be a decision made lightly and may result in significant court costs.

If you have any questions or require assistance with drafting or updating your will in Queensland, please contact the property team at NB Lawyers for more information.

Written by

Kayleigh Swift, Associate

Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.

Kayleigh Bio Page
kayleighs@nb-lawyers.com.au
(07) 3876 5111

Chloe Skubis, Lawyer

Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.

Chloe Bio Page
chloes@nb-lawyers.com.au
(07) 3876 5111

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