Disentitling Conduct – When Can a Person be ‘Cut Out’ of a Will?

Part IV of the Administration and Probate Act 1958 (Vic) allows Courts to examine claims by certain people who have either been entirely excluded as a beneficiary of a Will, or who are not sufficiently provided for under a Will. While Part IV claims are extremely useful for disinherited people who were genuinely dependant on the Will-maker (‘Testator’), this does not in and of itself prevent a Testator from validly excluding certain people from his or her Will.

In certain scenarios, a Part IV claim may be successfully defended against where the person bringing the claim has behaved so poorly towards the Testator in the past that it disentitles them from any provision under the Testator’s Will – this behaviour is often referred to by Courts as ‘disentitling conduct’.

Some Initial Considerations for Disentitling Conduct

Generally speaking, the process of determining whether certain conduct is sufficiently bad enough to disentitle a claimant is a balancing act between the conduct itself and the legitimate need of a claimant for provision. For example, if a claimant is in desperate need of provision and was entirely dependant on the Testator for support, his or her disentitling conduct would have to be so reprehensible that the need to punish that conduct would outweigh their financial needs.

It is also important to note that when a claim for provision is being resisted on the grounds of disentitling conduct, the onus of proof is on the person resisting the application. The person resisting the claim would have to provide sufficient evidence that the conduct occurred and that it was bad enough to warrant a refusal of their claim.

How is Disentitling Conduct Determined?

The question of severity with poor conduct is largely subjective and ultimately at the discretion of the Courts. This is not to say, however, that predictions cannot be made as to which way a Court may go. As a tool for judges in reaching a decision, they are asked to consider the ‘current community standards’ [1] – that is, a judge will have to consider, based on the current moral and social standards of our time, was the conduct sufficiently poor enough as to disentitle a claimant?

The use of current community standards is particularly important where, for example, a child is disinherited for going against the wishes of his or her parents. Courts across Australia have found the that the following do not constitute disentitling conduct:

  • Leaving home against their parent’s wishes;
  • Marrying a person without their parent’s consent;
  • Maintaining a lifestyle of which the parent did not approve; and
  • Maintaining different religious practices.

Where cultural or religious practices are taken to be the source of exclusion from a Will, current community standards are not used to form a value judgment against those practices. The Court will instead consider whether, based on the current community standards of the time, the conduct itself was reprehensible enough to constitute disentitlement from a Will.

The Testator’s own actions may also be used to consider the degree of severity of the conduct. For example, while adultery on the part of a spouse is generally agreed to be disentitling conduct [2], where the Testator has also engaged in adultery it can reduce the severity of the spouse’s conduct – sometimes to the point of allowing the claim to proceed nonetheless.

The following has also been identified as disentitling conduct:

  • Desertion of the deceased;
  • Criminal activity; and
  • A malicious and intentional lack of contact with the deceased for an extended period of time.

Some Final Thoughts on Disentitling Conduct

A final point to make is that disentitling conduct can only be used to refuse a claim made after the distribution of the Testator’s estate has begun. In other words, disentitling conduct is a defence to a claim rather than a pre-empted, prophylactic measure made by the Testator.

Applying for or disputing a Will is a complex and trying experience for anyone. As always, it is in your best interest to speak with an Estate Lawyer if you have any questions or concerns, or simply require some guidance.

[1]Vigolo v Bostin [2005] 221 CLR 191 Singer v Berghouse (No 2) (1994) 181 CLR 201 at 502

[2]Re De Feu [1964] VR 420 at 427; Birch v Reeves (unreported, SC(NSW), McLelland J, No 5350 of 1986, 21 July 1988, BC8801716)


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