One of the ways to challenge a Will is to make what is called a Family Provision Act claim (FPA claim). Only particular people known as ‘eligible persons’ can make these sorts of claims, such as the spouse or partner of the will-maker (the Testator). However, even if a person is ordinarily ‘eligible’, he or she may not be successful in making an FPA claim because they have engaged in what is known as ‘disentitling conduct’.

So what is disentitling conduct and how does domestic violence effect an FPA claim?

It should be mentioned that when making a Will, a Testator may decide to exclude certain people from the Will for a wide variety of reasons. For example, the Testator could –

• Be estranged from a particular child; or
• Be the victim of domestic violence by a current or former spouse or partner;

and for these reasons, the Testator disinherits those individuals.

After the Testator has died, the individuals might bring an FPA claim to try and obtain some provision out of the Testator’s estate. Evidence will come to light during the course of the FPA proceedings about the relationship between them and the Testator, which could in turn uncover any domestic violence that has taken place.

Depending on the extent of the domestic violence, it can be viewed as disentitling conduct. This is conduct that amounts to “misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default…” (see In Re the Will of F B Gilbert deceased (1946) 46 SR NSW).

In the case of Murphy v Stewart [2004], the NSW Supreme Court considered an application by a former husband (the Plaintiff) who had been the perpetrator of domestic violence against the Testator (the Deceased). The Court dismissed his application, finding that –

“Throughout the whole of their cohabitation, the Plaintiff was violently abusive of the Deceased, physically and emotionally… After cohabitation ceased, the Plaintiff harassed the Deceased and abused her in public… I am of the view that the Plaintiff’s conduct during and after the relationship with the Deceased would generally be regarded, according to current attitudes and expectations in the community, as disqualifying him as a natural object of testamentary recognition by the Deceased.”

If you would like advice about a potential FPA claim, please do not hesitate to contact our Succession Law Solicitors at Brazel Moore Lawyers on (02) 4324 7699.

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