Introduction

Being disinherited can be a deeply distressing experience, leaving you feeling excluded and uncertain about your rights. However, it’s important to know that legal avenues exist to contest a will and seek the provision you believe you deserve. This guide provides essential information and practical guidance on how to navigate the legal process of contesting a will with a family provision claim or contesting a will through promissory estoppel.

For those who have been disinherited, understanding the legal options available is crucial. This article will explain the processes for contesting a will, offering insights into eligibility, court considerations, and the evidence needed to support your claim. If you’re seeking to contest a will, this guide aims to empower you with the knowledge to take informed legal action.

Understanding Disinheritance: Impact on Wills & Estate Planning

What It Means to Be Disinherited

Being disinherited means you are removed from a will, which deprives you of the right to inherit from the deceased’s estate. This situation can occur in two main scenarios:

• When you were previously named as a beneficiary in an earlier will but are excluded in the current one
• When you would have inherited under intestacy laws but are now specifically excluded

For example, a parent might disinherit a child due to estrangement or to distribute assets more fairly among other beneficiaries.

Common Reasons for Disinheritance

People are often disinherited due to relationship issues or to ensure equitable distribution among beneficiaries. Here are some typical reasons:

Reason	Description
Relationship Conflicts	Estrangement or significant disagreements, such as when a parent and adult child have opposing lifestyles or beliefs.
Financial Distribution	A testator might disinherit someone who has already received substantial assets, like an early inheritance, to avoid disadvantaging other beneficiaries.
Lack of Contact	Minimal or no contact over time may lead to exclusion from the will.

When evaluating cases of disinheritance, the court bases its decisions on what a reasonable testator would do in similar circumstances. This approach helps ensure fairness while taking into consideration the needs of all parties involved.

What are my Options if I’ve been Disinherited?

If you’ve been left out of a will, there are still legal avenues available, including family provision claims and equitable doctrines like promissory estoppel, that may help you secure a fair share of the estate.

Family Provision Claims & Court Considerations

The Family Provision Claim Process

A family provision claim is a legal avenue available to eligible individuals who have been disinherited or inadequately provided for in a will. Under theSuccession Act 2006 (NSW), this claim allows certain persons to seek a fair share of the estate.

Eligible persons include:

• Spouses
• Children
• Former spouses
• Dependents

The claimant must demonstrate that the deceased failed to make adequate provision for their maintenance, education, or advancement in life.

The process involves filing a Family Provision Application with the Supreme Court of NSW. The court evaluates each claim based on its merits, considering the claimant’s financial needs and the impact on other beneficiaries. If the court finds the provision inadequate, it may adjust the will to provide a more equitable distribution.

Court Evaluation Factors for Family Provision Claims

When assessing a family provision claim, the court considers several key factors:

Factor	Court Consideration
Financial Needs and Circumstances	The claimant’s current and future financial situation, including income, debts, and living expenses, is evaluated. The court also considers the financial well-being of other beneficiaries to ensure a balanced outcome.
Testator’s Intentions	The court examines the deceased’s reasons for disinheriting or inadequately providing for the claimant. This includes any written explanations or evidence of the relationship between the deceased and the claimant.
Impact on Other Beneficiaries	The court assesses how adjusting the will might affect other beneficiaries, aiming to maintain fairness and equity among all parties involved.
Size and Complexity of the Estate	The court considers the estate’s value and complexity, ensuring that any adjustments do not unduly burden the estate or other beneficiaries.
Relationship Dynamics	The nature of the relationship between the claimant and the deceased is reviewed, including any estrangement or contributions the claimant made to the deceased’s life or estate.

By evaluating these factors, the court determines whether the deceased’s will adequately provides for the claimant and whether adjustments are necessary to ensure fairness and equity.

Promissory Estoppel Claims & Evaluation Considerations

The Promissory Estoppel Claim Process

Promissory estoppel is a legal doctrine that provides an alternative route for individuals to contest a will, particularly when they are not eligible to make a family provision claim. This doctrine allows a claimant to enforce a promise made by the deceased, even if it was not fulfilled in the will.

For a claim of promissory estoppel to succeed, the claimant must establish the following key elements:

Element	Requirement
Promise	The deceased must have made a clear and unambiguous promise to leave the claimant a specific gift or inheritance.
Reliance	The claimant must have relied on this promise, demonstrating that they acted in a way that was influenced by the promise (e.g., not pursuing other opportunities or incurring financial detriment).
Detriment	The claimant must have suffered a detriment as a result of relying on the promise (e.g., financial loss or forgone opportunities).
Unconscionably	It must be unconscionable for the estate to disregard the promise, meaning it would be unjust or inequitable for the deceased’s estate to fail to honour the promise.

If these elements are proven, the court may order that the promised gift be treated as the claimant’s property from the time the promise was made, ensuring the deceased’s estate is bound by the promise.

Court Considerations for Promissory Estoppel Claims

When evaluating a promissory estoppel claim, courts face unique challenges, particularly due to the evidentiary nature of such claims. Since the deceased is no longer alive to provide their version of events, the court must rely heavily on the claimant’s evidence.

Key factors the court considers include:

Factor	Court Consideration
Corroboration	The court looks for evidence that supports the claimant’s account of the promise. This could include witness testimony, written records, or other documentation that corroborates the claimant’s version of events.
Reliability of Testimony	The credibility of the claimant and any witnesses is crucial. The court will assess whether the testimony is consistent and believable.
Unjust Enrichment	The court will consider whether failing to honour the promise would result in unjust enrichment for the estate or other beneficiaries.
Equitable Outcome	The court’s ultimate goal is to achieve a fair and just outcome. If it is clear that the deceased made a promise and the claimant relied on it to their detriment, the court may find it unconscionable to allow the estate to disregard the promise.

Promissory estoppel claims are complex and require careful preparation. If successful, they can provide a pathway for individuals to secure a share of the estate, even when traditional avenues are not available.

Case Studies of Contesting a Will

Case Study: Piercy v Douras & Family Provision Claims

The case of Piercy v Douras [2019] NSWSC 1012 involved an adult son who was entirely disinherited from his father’s estate, which was left entirely to the deceased’s second wife.

When evaluating this family provision claim, the court carefully considered several factors related to the son’s circumstances:

• His financial situation
• Health concerns
• Ability to support himself

Despite the estrangement between the son and the deceased, the court found that the son was not entitled to any provision from the estate. This decision was based on two key considerations:

• The deceased had valid reasons for disinheriting the son, including the son’s financial stability
• The diminished estate value after the deceased’s death

This case highlights the court’s focus on the claimant’s financial needs and the testator’s intentions when evaluating family provision claims.

Case Study: Hyslop v Hyslop & Promissory Estoppel

In Hyslop v Hyslop; Estate of Joyce Audrey Hyslop [2007] NSWSC 1178 the court considered a claim of promissory estoppel. The claimant alleged that the deceased had promised to leave them a specific gift but did not fulfil this promise in the will.

The court emphasised the need for corroboration of the promise, as the deceased could not provide their version of events. To support their claim, the claimant relied on various forms of evidence, including:

• Witness testimony
• Written records

This case effectively demonstrates the challenges of proving promissory estoppel claims and the importance of gathering robust evidence to support such allegations.

Conclusion

Contesting a will when disinherited can be a complex and emotionally challenging process, but there are clear legal avenues available to seek fair provision. Through family provision claims under the Succession Act 2006 (NSW) or promissory estoppel, individuals can contest a will and potentially secure the inheritance they believe they deserve. The court considers various factors, including financial needs, the testator’s intentions, and the impact on other beneficiaries, to determine if adequate provision has been made.

If you believe you have been wrongfully disinherited, it is crucial to act promptly and seek legal advice from experienced wills and estate lawyers. At PBL Law Group, our experts specialise in assisting clients with family provision claims and other estate-related matters. Contact our will contest lawyers to discuss your case and ensure you receive the provision you are entitled to.

Frequently Asked Questions