What Is Disentitling Conduct in a NSW Family Provision Claim?

The Statutory Basis Under Section 60

The starting point is section 60(2)(m) of the Succession Act 2006 (NSW), which directs the Court to consider the character and conduct of the applicant before and after the deceased’s death. Section 60(2)(n) extends this to the conduct of any other person, recognising that family dynamics rarely involve only one actor. 

The High Court in Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 established that the applicant bears the onus of justifying the claim and that the deceased’s stated reasons for excluding an applicant are admissible to show why the will was made in those terms. 

Section 100 of the Succession Act 2006 (NSW) reinforces this by allowing statements by the deceased to be received as evidence of the facts stated.

What Counts as Disentitling Conduct?

Not every disagreement, slight, or period of distance amounts to disentitling conduct. The NSW Supreme Court has treated the following categories as relevant when assessing whether an applicant’s conduct should reduce or defeat a claim:

• Violence or physical abuse. Sustained violence or serious assault against the deceased, particularly in later years, weighs heavily against the provision. The community does not expect estates to reward those who harmed the deceased.
• Threats, intimidation, or coercion. Conduct designed to pressure the deceased into making or changing a will, or to extract money during life, can reduce or defeat an entitlement.
• Theft or financial exploitation. Stealing from the deceased, misappropriating funds under a power of attorney, or financial abuse during incapacity is treated seriously.
• Withholding support without justification. An adult child who deliberately withholds support, love, or contact from a parent in old age, without a proper reason, can lose entitlement.
• Public conduct that humiliates or harms the deceased. Damaging the deceased’s reputation, business, or relationships in a deliberate way is relevant.
• Conduct after death. Disruptive or dishonest behaviour during estate administration, including attempts to mislead the Court or destroy documents, is also captured by section 60(2)(m).

The Court asks whether the conduct, viewed in context, reaches a level that the community would regard as forfeiting or reducing the moral claim on the deceased’s bounty.

Estrangement and Disentitling Conduct

Estrangement is the most frequently raised form of conduct in NSW family provision claims. The cases draw careful distinctions:

Estrangement Caused by the Applicant

Where the applicant is largely responsible for the breakdown and shows no genuine effort to reconcile, the Court can reduce or refuse provision. Persistent rejection of an aging parent’s reasonable contact attempts is the clearest example.

Estrangement Caused by the Deceased

Where the breakdown was caused by the deceased, through abuse, neglect, or unreasonable rejection, estrangement is not disentitling. The Court will not allow the deceased to benefit from their own conduct by then relying on the resulting distance to exclude the applicant.

Mutual or Mixed Causes

Most real-world estrangements involve fault on both sides. The Court takes a holistic view, weighing what each party contributed and whether reconciliation was attempted. In Foley v Ellis [2008] NSWCA 288, Sackville AJA warned against oversimplifying complex family relationships by categorically condemning the behaviour of one party.

Distance Without Hostility

Long physical separation, including living interstate or overseas, is not estrangement in the legal sense if the relationship was preserved through regular contact. Geography alone does not engage section 60(2)(m).

The Balancing Test: Severity vs Need

Disentitling conduct is not assessed in isolation. The Court applies a balancing approach that weighs the conduct against the applicant’s need and the wider circumstances:

• The stronger the need, the more reprehensible the conduct must be. An adult child in genuine financial hardship who has had a difficult relationship with the deceased may still recover something. A wealthy adult child with the same conduct is more likely to recover little or nothing. The Court calibrates the threshold based on the applicant’s actual circumstances.
• Severity and persistence matter. Single incidents rarely defeat a strong claim. Persistent, serious, or violent conduct over a sustained period has more weight than isolated arguments or moments of family tension. The pattern of behaviour is what the Court evaluates.
• Reconciliation and remorse. Genuine attempts to repair the relationship, particularly in the deceased’s later years, can soften the impact of earlier conduct. An applicant who acknowledges fault and has made meaningful efforts to mend matters is treated more sympathetically.
• Size of the estate. A large estate gives the Court room to provide modestly for an applicant whose conduct was significant. A small estate sharpens the choice between competing claims and can leave little margin for a conflicted claim.
• The deceased’s own view. The deceased’s written reasons for excluding the applicant carry weight under section 100 of the Succession Act 2006 (NSW) but do not bind the Court if the conduct described does not reach the threshold the law requires.

The balancing exercise is fact-specific. The Court does not apply a fixed tariff or scale of conduct.

Key NSW Cases on Disentitling Conduct

Several NSW Court of Appeal decisions guide how disentitling conduct is assessed in practice. Each adds a layer to the analysis.

Wheatley v Wheatley [2006] NSWCA 262

Wheatley v Wheatley confirmed that estrangement, even where prolonged, is a factor to weigh rather than an automatic disqualifier. The Court must look at causes, attempts at reconciliation, and the overall context.

Foley v Ellis [2008] NSWCA 288

Foley v Ellis is the leading NSW authority on estrangement and conduct. Sackville AJA held that estrangement or even hostility between a testator and a claimant does not, of itself, terminate the testator’s obligation to provide. Care must be taken to assess relationships in their full complexity.

Andrew v Andrew [2012] NSWCA 308

In Andrew v Andrew, the applicant had been estranged from her mother for approximately 35 years but succeeded in obtaining additional provision. The NSW Court of Appeal held that estrangement, even prolonged, restrains the amplitude of provision rather than automatically defeating the claim. The Court rejected the notion that a testator is free to provide nothing for an adult child simply because of estrangement, while recognising that the degree of estrangement calibrates the size of any order.

Underwood v Gaudron [2015] NSWCA 269

In Underwood v Gaudron, Hallen J at first instance set out broad principles on how courts approach estrangement. The Court of Appeal dismissed the appeal, endorsing the structured fact-finding approach to character and conduct issues.

More: How to Stop Someone Contesting a Will in NSW Australia

How the Court Decides in Practice

A NSW family provision matter that turns on disentitling conduct typically follows a predictable analytical path:

• Identify the conduct alleged. The party relying on conduct, usually the executor or other beneficiaries, must specify what is alleged and when it occurred.
• Prove the conduct on admissible evidence. Allegations need supporting evidence: witness affidavits, contemporaneous documents, messages, medical records, or police records. Bare assertions rarely succeed.
• Assess the applicant’s needs. The Court considers financial position, age, health, dependants, and earning capacity to gauge the strength of the moral claim.
• Weigh conduct against need. Severe conduct can defeat a weak claim. Less serious conduct may only reduce, not eliminate, the provision.
• Consider the deceased’s stated reasons. Statements made by the deceased about why the applicant was excluded are evidence under section 100 of the Succession Act 2006 (NSW), particularly when documented at the time of the will.
• Apply community standards. The Court asks what a wise and just testator would have done in the circumstances. The decision must reflect contemporary expectations, not personal views.

The Supreme Court of NSW publication on family provision outlines how character and conduct sit within the broader discretion the Court exercises.

More: Difference Between Challenging and Contesting a Will

Speak to a NSW Family Provision Lawyer

Disentitling conduct arguments live or die on evidence: diaries, messages, witness recollections, and contemporaneous records. Call Empower Wills and Estate Lawyers on 1300 414 844 to discuss whether conduct in your case engages the doctrine, either as a sword for an executor or a shield for an applicant. Our specialist practice acts for claimants and executors in NSW family provision matters across all stages of the dispute. First consultations cover fee options including payment plans, sliding scales, pensioner discounts, and no-win, no-fee agreements where eligible. Disbursements and barrister’s fees apply in all matters.

Frequently Asked Questions

Is being estranged from my parents enough to disqualify me from contesting their will?

No. Estrangement alone is not disentitling under NSW law. The Court looks at who caused the estrangement, whether reconciliation was attempted, and whether the applicant still has a moral claim based on need and relationship history.

Can disentitling conduct reduce provision rather than eliminate it?

Yes. The Court can reduce the size of an order without refusing it entirely. Less serious conduct typically reduces provision proportionally, while severe conduct may extinguish the claim.

Does the deceased’s written explanation in the will bind the Court?

No. The deceased’s statement is admissible under section 100 of the Succession Act 2006 (NSW) as evidence of reasons, but the Court is not bound by it. The Court applies community standards regardless of the testator’s view.

What kinds of evidence prove disentitling conduct?

Affidavits from witnesses, contemporaneous letters and messages, medical and police records, financial documents showing exploitation, and the deceased’s own contemporaneous statements. Hearsay alone rarely succeeds.

Can conduct after the deceased’s death also be disentitling?

Yes. Section 60(2)(m) of the Succession Act 2006 (NSW) covers conduct before and after death. Disruptive estate behaviour, document destruction, or attempts to mislead the Court can all be relevant.

If I had no contact with my parents for 20 years, can I still claim?

Possibly. Long estrangement is a significant factor, but not an automatic disqualification. The Court will examine causes, your need, the size of the estate, and any attempts at reconciliation before deciding.