Does a criminal record affect eligibility to contest a Will?

Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Thus, you launch a family provision claim. These claims are also commonly referred to as Part IV claims or Testator Family Maintenance (TFM) claims.

So, if you feel ‘hard done by’ as a result of the deceased…these are the proceedings you would launch so to receive a share, or larger share of the deceased’s estate.

In order to contest a Will, you must first be part of an ‘eligible class of person’. There is an exhaustive list of who is considered eligible in s 91(2)(b) of the Administration and Probate Act 1958 (Vic) which most notably includes spouses/de-factor partners, children/step-children, members of a household, registered caring partners and grandchildren.

You then must prove that the deceased had a moral duty to provide for your proper maintenance and support and further convince the courts that the distribution as currently set out in the deceased’s Will fails to provide for your required adequate provision.

What is considered

When determining what would be a fair and just outcome, the court considers factors listed in s 91A of the Administration and Probate Act 1958.

This includes; the deceased’s will, any evidence of the deceased’s reasons for making the dispositions in the deceased’s will, the nature of the relationship, any obligations or responsibilities of the deceased to the eligible person and other eligible people/beneficiaries of the estate, any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate, the age of the eligible person, any contribution the eligible person has made to the estate or the welfare of the deceased, any benefits previously given by the deceased to any eligible person or any beneficiary, the character and conduct of the eligible person, the size of the estate and any other matter the Court considers relevant.

Hence, a ‘criminal record’ is not a consideration in its own right, but arguably can come under the category “any other matter the Court considers relevant”. As such, it is something we need to review.

Criminal record case study

In the case of Hastings v Hastings [2008] Justice White was quoted to say in obiter that “a criminal record is not as such to bar a claim [for further provision]”.[1] He used the case of Hoadley v Hoadley (17 February 1987) as precedent.

In Hoadley, it was held that despite the applicant (adult child) spending 20 years in prison, the deceased still owed their son a moral duty of care, so an order was made in the applicant’s favour for further provision to enable good prospects of rehabilitation.

The cases of both Hastings and Hoadley clearly demonstrate that a criminal history alone is not enough to affect a person’s eligibility to contest a Will.

However, what the case of Hastings does show us is that unsurprisingly, a criminal history when assessed in the light of surrounding factors can will adversely affect one’s ability to claim further provision.

In Hastings, the deceased left her entire Estate to one son (John) and nothing to her other son (Phillip) who had a criminal history of drug abuse and trafficking. Justice White rejected Phillip’s claim on the basis that his criminal record brought shame to the family, he rarely visited the deceased during her lifetime, and that his poor financial circumstances and health as pleaded was due to his own conduct through continued drug abuse, not merely unfortunate circumstances.

“The deceased was well able to judge the relative dessert of her children. The defendant had substantial claims on her as she recognised.  The plaintiff’s character and conduct, the fact that his financial needs are due to his own fault, the shame his conduct brought on the deceased and the family, and the very slight contact he had with his mother during his adult life, indicate that he does not have a legitimate claim on his mother’s property.  That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life” – Justice White.

In summary

To conclude, a criminal record alone is unlikely to bar an applicant’s claim for further provision, but per Hastings, there is a strong argument that a criminal record will make factors which originally weaken a case, worse.

For more information, or if you are wanting to defend or contest a Will, speak to one of our Wills and Estate specialists today on 8615 4200.


[1] Hastings v Hastings [2008] NSWSC 1310, 40.

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