Australia: Recent example of what constitutes disentitling conduct in family provision cases

Last Updated: 4 March 2016
Article by Elise Croft (previously with Kott Gunning)

Beneficiaries of a Will often find it upsetting when they find out someone who has treated the deceased badly throughout their life is still eligible to make a claim against the estate under the Family Provision Act 1974 (WA) (the Act).

The Court does have the power to refuse to make an order in favour of such a person, but it will only do so when their conduct constitutes "disentitling conduct". The onus is on the person alleging that there was disentitling conduct to actually prove it, even when the deceased has written a letter (annexed to their Will) detailing it.

The problem is that there are not many examples of the Court exercising that power. In Western Australia about 95% of these matters settle at mediation, so we often have to look to the New South Wales Supreme Court for examples of what might actually constitute "disentitling conduct" at a trial. That being said, all that can really be gleaned from the NSW cases is that:

  • The greater the need the applicant has for provision from the estate, the more egregious the conduct needs to be in order for the Court to refuse the order.
  • An award can be reduced to take into account disentitling conduct such as long periods of estrangement, blackmail and cruel and unkind conduct.

Thankfully we now have some WA authority on point. On 18 February 2016 Master Sanderson handed down his decision in Christie v Christie [2016] WASC 45. In that case, whether there was "disentitling conduct" was the only question the Court needed to answer.

The parties

The plaintiff was the only surviving child of his deceased mother. The defendant was the daughter of the plaintiff's deceased sister.

The Plaintiff's Evidence

In support of his application the plaintiff filed four affidavits. The plaintiff essentially tried to paint the picture of a loving son, always keen to have a close relationship with his mother, but who was pushed away without any explanation. His evidence can be summarised as follows:

  • The plaintiff had lived with his mother and father between 1973 and 1977. He considered his mother's behaviour "changed" during this time, but he did not go into specifics about it other than to say that she "talked down" to him.
  • Shortly after he moved out, his father died. His mother did not tell him. Despite this, he moved back in with his mother and lived with her for a further 10 years, finally moving out and relocating to NSW in 1987.
  • As at 1987 the plaintiff said his mother had become very distant with him and had accused him of a number of unspecified things. He said he couldn't understand why his mother was cold towards him and would not have anything to do with him.
  • He said he continued to try to make contact with his mother but to no avail.

The defendant filed affidavit material disclosing that the plaintiff was violent towards the deceased. He was cross-examined and it was put to him that he was a violent person who had indeed abused the deceased. The plaintiff denied each and every allegation put to him. His evidence was to the effect that any witness who gave evidence that he had abused his mother was simply mistaken.

The Master, however, did not like the plaintiff as a witness. He said his manner in the witness box suggested hostility and he was evasive in answering perfectly reasonable questions.

Also, one of his affidavits contained an untrue statement. He said he was not a violent person and had never come to the attention of the Police. In fact the evidence of the defendant showed that the plaintiff had been charged with a number of offences in NSW and convicted of at least one offence. He had also been the subject of a violence restraining order.

The Court concluded there could be no doubt the plaintiff was untruthful with the intention of misleading the Court and advancing his claim. In the Master's view the criminal evidence completely undermined his credibility.

Luckily for the plaintiff, he also relied on the evidence of Kristy Ann Huxtable, the granddaughter of the deceased. Her evidence was very helpful to the plaintiff, confirming she had known him for a long period of time and that he had never shown a tendency to violence. Master Sanderson found her to be very reliable, and noted that she was unshaken in her view that the plaintiff was not a violent individual.

The defendant's evidence

The defendant said she recalled hearing arguments between the deceased and the plaintiff, saying they occurred frequently. However she never actually saw any violence perpetrated against the deceased (by the plaintiff).

She did, however, remember a conversation that occurred between her and the deceased in 2011, the purpose of which was to pinpoint why the deceased was estranged from the plaintiff. That evidence went as follows:

In about late 2011 I had an argument with my grandma regarding why my grandma stopped communicating with the plaintiff and why he was not allowed in the house.
After considerable argument and tears by both of us, my grandma eventually told me what had occurred between the plaintiff and her.
My grandma told me that the plaintiff had been very abusive to her and my mother on many occasions since he was a teenager.
My grandma told me of one incident where he was fighting and pushing my grandma, my mother said something and went to intervene and the plaintiff pushed her off the stool in the kitchen.
After that my grandma was afraid that the plaintiff was going to start hitting me.
She also told me of an incident where the plaintiff grabbed her around the throat and pushed her against the wall with a lit cigarette lighter held to her head threatening to set her on fire.
I asked her why she didn't tell someone or go and get help and she told me that back in her day you did not speak about these types of things. She told me she was embarrassed by the plaintiff's behaviour and ashamed of what people would say about how she had brought the plaintiff up.
My grandma said that my grandpa was not well at the time and was too weak to help her.

Counsel for the plaintiff objected to this on the basis that it was inadmissible hearsay, but Master Sanderson said it was admissible under section 21A of the Act.

That was not all of the evidence that the defendant had to give. She relied on further affidavit material from:

  • The deceased's next door neighbour, a close friend of the deceased from about 1964 onwards. She recounted one incident where she was told by the deceased that she (the deceased) had been assaulted by the plaintiff. The Master, however, did not pay much attention to this evidence as it did not suggest a long history of violence.
  • The daughter of the neighbour, who also had a close relationship with the deceased. This witness recounted how, as a child and in her teenage years, she heard the plaintiff yelling abuse at the deceased. She said it was almost a daily occurrence. In her affidavit she gave some examples of the abusive language used towards the deceased. She also recounted seeing bruises on the deceased which the deceased told her were the result of an assault by the plaintiff. A passage of her evidence that interested the Court was as follows:
  • Over the years of our friendship the Deceased spoke to me a number of times about [the plaintiff's] behaviour and how she was fearful of [the plaintiff.
    The Deceased told me that [the plaintiff] would sometimes slam her against the wall in the hallway or against a doorframe. He would also hold her in a headlock, push her into walls and hit her. The Deceased told me of one occasion where [the plaintiff] grabbed her arm and put it behind her back and then rammed her head against the wall.
    The Deceased also told me that [the plaintiff] knew where to hit her and how to hit her so no one would know. The Deceased told me that he would hit her with a telephone book because that way she wouldn't bruise as easily.

    In cross-examination she was asked why she did not report the matter to the police. Her response was to say at the time, reporting such incidents to the police was not reasonably to be expected. She said the deceased indicated it should be kept within the family and not referred to some outside agency. That struck Master Sanderson as a perfectly reasonable explanation.

    Master Sanderson found this witness to be extremely impressive and accepted her evidence unreservedly.

  • The eldest daughter of the neighbour also gave evidence. She possessed a number of qualifications and worked for a number of years in the area of domestic violence. She also described herself as a "psychic detective". Her affidavit evidence was consistent with the evidence of her sister and her mother, but Master Sanderson did not find her to be a satisfactory witness. In the end he said he would not take her evidence into account in determining the application. He also said that, given her psychic powers, the witness probably anticipated this outcome!


Master Sanderson's decision was that, on the balance of probabilities, over a period of many years the plaintiff did perpetrate violence against his mother. He was abusive and physically aggressive, which gradually led to his mother excluding him from her life and eventually cutting off all contact with him. He did not accept the plaintiff's evidence that he was a loving son excluded from his mother's affections. Quite the reverse. He found he was excluded from his mother's life because he treated her badly.

Master Sanderson concluded by saying:

"...the question of whether the actions of the plaintiff was such as to disentitle him from making a claim must be judged according to current attitudes and expectations in the community. Section 6(3) does not actually specify a time when the decision is to be made. In my view it has to take into account the history of the relationship between the claimant and the deceased. It is the broad scope of that relationship which I have looked at in reaching my conclusion.
Violence against women is never acceptable. It is at odds with a basic tenant of civilised society. The criminal law in recent times has recognised the unacceptable nature of such conduct and imposed harsh penalties. A person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate. The acts of violence reap their own reward. That is exactly what has happened in this case."


What is clear from this case is that the conduct in question must be judged according to the history of the relationship between the person and the deceased as well as current attitudes and expectations in the community. Violence towards the deceased that is not explained by reason of a mental illness, or qualified by the plaintiff trying to reconcile the position with the deceased, will likely be considered disentitling conduct.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Elise Croft (previously with Kott Gunning)
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