Introduction

When a person challenges a Will and claims greater provision from the estate, the Court will consider a range of factors before making an order for greater provision. Some key factors that the Court will consider are the relationship between the deceased and the claimant, and the character and conduct of the claimant. Poor conduct by the claimant towards the deceased is often referred to as ‘disentitling conduct’.

Sharrock Pitman Legal acted for an executor to defend a challenge against a Will in the recent case of Pavlidis v Pavlidis [2023] VSC 92. In this case, the Supreme Court had to determine whether conduct towards the deceased by an adult son amounted to disentitling conduct.

Background

The deceased passed away in 2017, leaving behind two adult children - her son J and her daughter K. The deceased’s estate was valued at approximately $2 million at the date of her death.

The deceased’s Will appointed K as the Executor. The Will gifted J a fixed sum of $100,000.00 and left the remainder of the estate to K. Unhappy with the provision made to him under the Will, J filed a claim for a greater provision. At the time of filing his claim, J was unemployed and did not own substantial assets.

Court proceedings

The Court considered a range of factors, including J’s financial position, whether he was in need of further provision, his relationship with the deceased and whether his alleged conduct towards the deceased disentitled him from receiving a greater provision.

K alleged that J was prone to violence and aggression towards the deceased, which was evidenced by the existence of an intervention order between J and the deceased, prior to her death.

K also alleged that J had engaged in financial abuse against the deceased. K alleged that J had pressured the deceased to act as guarantor for the purchase of his property, and to transfer approximately $500,000 of the deceased’s money to an offset account, in order to reduce the interest on his loan repayments. J later withdrew substantial funds from this offset account, without the consent of the deceased.

Despite the existence of the intervention order, the Court was not persuaded that the relationship between J and the deceased was characterised by violent or aggressive behaviour.  The court considered evidence by family friends that demonstrated more positive aspects of their relationship.

The Court accepted that J had withdrawn funds from the offset account without the deceased’s consent. However, the Court also noted that J had paid these funds back to the deceased.

All in all, while the Court accepted that J’s conduct was less than exemplary, the Court held that it did not amount to disentitling conduct, nor did it displace J’s demonstrable financial need. The Court also found that J had depended on the deceased during her lifetime for financial support.

The Court awarded J a total of $340,000.00 from the estate(including the $100,000.00 fixed sum pursuant to the Will).

Conclusion

This case demonstrates that when making an Order for a greater provision, the Court will consider the character and conduct of the claimant. However, the claimant’s financial circumstances, and dependency on the deceased at the time of their death, are also relevant considerations. In this case, despite J’s conduct towards the deceased, it was not sufficient to displace his need for greater provision and was not so serious as to amount to disentitling conduct.

How Sharrock Pitman Legal can assist?

For an Executor, managing a challenge to a Will can be upsetting experience and potentially costly if litigation ensues.

Therefore, as a Will is one of the most important documents that an individual possesses, it should be drafted with careful consideration. Seek professional advice early if there is a prospect that the Will may be challenged and for guidance in managing disputes as a consequence.

Please do not hesitate to contact our Accredited Specialist Wills & Estates team on 1300 205 506 or email willsandestates@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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