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What Can I Do If I Have Been Disinherited From A Will?

When a testator makes changes to their will to remove a person as a beneficiary, that person is said to have been disinherited. Anyone who makes a will in Australia can add or remove beneficiaries at any time. However, when a person removes someone from their will, this does not necessarily mean that the person who has been disinherited cannot eventually receive provision from the estate. There are various legal avenues that a disinherited person can use to challenge being disinherited from a will if they are a close family member or dependant. This article explains what it means to be disinherited and sets out what a disinherited person can do legally to contest a will.

What Does It Mean To Be Disinherited?

A disinherited person is someone who has been deprived of the right to inherit from a deceased estate. A testator disinherits a person when they make a will that leaves no provision for a person who was a beneficiary under a previous will, or who would be eligible to inherit if there was no will (that is, under the laws of intestacy).

Why Would Someone Be Disinherited?

A person may be disinherited because of relationship conflict, or because they have no current contact with the will-maker. For instance, a parent might have a disagreement with their adult child over their lifestyle, religion, choices, or some other highly emotional issue. This may lead to an ongoing estrangement, with the parent feeling that they no longer have an obligation to provide for the child who is no longer actively part of their life.

Sometimes a testator has a good reason for disinheriting a person. 

Aside from the obvious estrangements and ill feelings that can occur between family members, a testator may disinherit a person from their will in order to be fair to other beneficiaries. For example, a parent who has already given substantial funds or assets to one child as an early inheritance may feel they ought to leave their remaining assets to their other children.

The law has provisions to accommodate these situations. The court will ask what a reasonable testator would have done in the same circumstances. If a reasonable testator would have disinherited the person, then the court will not interfere with the provisions of the will.

What To Do When Someone Is Disinherited

When a person has been disinherited from a family member’s will, there may still be a way for them to receive fair provision from the estate. Certain family members and categories of dependents are entitled to make a legal claim against an estate if they have been disinherited. The New South Wales Succession Act 2006, for instance, allows a child or spouse of the deceased, as well as any financial dependent, to bring a Family Provision Application to the Supreme Court of NSW.

The person making the claim will have to show that they were wrongfully disinherited given their entitlement to inherit and that they have current and future financial needs that mean that they ought to receive provision from the estate. The court will consider the claim on its own merits, but it will also keep in mind the impact that making provision for the claimant would have on other beneficiaries and claimants. As noted above, the court’s decision will hinge on what a reasonable testator would have done in the same circumstances.

Equitable Proprietary Estoppel

A disinherited person may also seek to reverse their fortunes by making a claim of equitable proprietary estoppel. Crucially, this option is open to those who are not eligible to make a Family Provision claim. 

When a person was promised a bequest by a person and did not receive the promised gift in their will, they may have grounds for making a claim of equitable proprietary estoppel. This claim is made in equity (also known as the court of conscience) to protect injured parties who cannot rely on contractual law. 

This legal action is designed to provide recourse for persons who have suffered damage because they relied on someone else’s word. For example, in Lewis v Lewis & Anor [2001], the New Suth Wales Supreme Court upheld a claim of equitable proprietary estoppel after a testator failed to keep their promise to make a testamentary gift. The court found that the deceased deliberately made the offer with the intention that the claimant would rely on the promise.

Am equitable proprietary estoppel claim is harder to prove than a Family Provision Claim. The courts have noted that, by definition, these claims rely on one person’s recollection of events in a situation where the deceased cannot give their version of what occurred.

In the 2007 Supreme Court of NSW decision of Hyslop v Hyslop; Estate of Joyce Hyslop, it was emphasised that when a claimant alleges an agreement with a deceased person, the court will seek corroboration of this claim. A claimant must establish the following elements of a claim of equitable proprietary estoppel:

  • That the testator promised the gift during their lifetime;
  • That the claimant relied on the testator’s promise;
  • That the claimant suffered detriment because they relied on the promise; and
  • Given all these circumstances, it would be unconscionable for the estate not to be bound by the promise.

If the claim is proven, the court can make an order that the gift became the property of the claimant from the moment that the testator made the promise, and it therefore is not an asset of the estate.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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