Contesting a Will
If you have been left out of a Will, or feel you have been treated unfairly by the deceased within their Will, you can launch a family provision claim so to contest it.
To successfully contest a Will, you first must be part of an ‘eligible class of person’ as determined by s 91(2)(b) of the Administration and Probate Act 1958 (Vic). You are then required to prove that the deceased had a moral duty to provide for your proper maintenance and support, and that accordingly, the distribution of the deceased’s estate as set out in the Will fails to provide the required adequate provision.
When contesting a Will, the courts consider a multitude of factors to determine what would be a fair and just outcome.
The factors assessed include, but are by no means limited to: Evidence of the deceased’s reasons for making the Will in the terms that he/she did, any evidence about the deceased’s relationship with the applicant, obligations/responsibilities the deceased had to the applicant, any physical or mental disability of the applicant, the applicant’s character, the applicant’s financial resources, and the applicant’s needs.
As you can see, although a ‘criminal record’ is not a consideration in its own right; it arguably is integral in the consideration of any of the aforementioned assessment categories, and therefore is an important element to appraise in Will contests.
Criminal Record Impact Case Study
In Hastings v Hastings  Justice White was quoted to say that “a criminal record is not as such to bar a claim [for further provision]”. He used the case of Hoadley v Hoadley (17 February 1987) as precedent. There, an order for provision in favour of an adult child who had spent 20 years in prison was made. It was held that despite the prison sentence, the deceased still owed a moral duty to their son and an order in his favour for further provision would enable good prospects of rehabilitation. Thus, the plaintiff’s application was successful despite his criminal record.
However, what the decision in Hastings also shows us is that although a criminal record alone is not enough to bar a claim, a criminal record when assessed in light of the impact it has had on the lives of both the applicant and testator, may still have an adverse effect on a request for further provision.
In Hastings, the testatrix’s last and all previous Wills left her entire Estate (about $600,000 worth) to one son, John, and nothing to her other son, Phillip, who had a criminal history of drug abuse and trafficking. Phillip contested this division through a family provision claim.
It was decided that Phillip’s claim was barred, not because of the criminal past alone, but due to the conduct which stemmed directly from his criminal past, the effect the criminal past had on the testatrix, and his character in general. This being that respectively: First, his poor financial circumstances and health which ordinarily would suggest a need for further provision were a direct consequence of his own continuous criminal conduct and thus removed the moral obligation from the testatrix to provide. Second; the criminal record brought shame on the testatrix, as the applicant’s crime was published in major news outlets across Australia and the testatrix felt as if people avoided her due to her son’s charges, which overall had an extremely negative affect on her wellbeing. Third; the applicant rarely visited the testatrix during his adult life when free to do so, reflecting poorly on his character.
“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” – White J.
As evidenced by Hastings, a criminal record alone is unlikely to bar an applicant’s claim for further provision, but it could weaken and potentially bar a case when assessed in conjunction with the applicant’s resulting character and conduct.
However, the key take away should be that every Will contest is unique and therefore there are no ‘hard or fast’ rules surrounding the effect a criminal record will have on a Will contest. So, if you are considering contesting a Will, ensure to get in contact with one of our Wills and Estate lawyers today for your free initial consultation and assessment of your claim.
 Hastings v Hastings  NSWSC 1310, 40.