The impact of having a criminal record on your case when contesting a will, can be concerning for anyone who feels unfairly left out of a will. The applicant may worry that their past actions may bear heavily on their current situation.

However, in the following article, we will outline how a criminal record should not bar anyone from making a legitimate claim. Although, this is the case that a criminal record should not bar anyone from making a legitimate claim, there have been extenuating circumstances where conduct stemming directly from a criminal past has reflected poorly on character.

A criminal record alone is not likely enough to result in the barring of an applicant’s claim. However, it could potentially weaken their case if evaluated in conjunction with their character and conduct – depending on the nature and circumstances regarding the crime.

What are the Grounds for Contesting a Will?

In the case that someone close a testator (the deceased) has been left out of a will unfairly, it is possible to launch a family provision claim to contest it.

In order to successfully contest a will, it is first important that the applicant be considered an ‘eligible class of person’ according to section 91(2)(b) of the Administration and Probate Act 1958 (VIC). According to the act, and eligible class of person is defined as any of the following:

(a)     a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;

        (b)     a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was—

              (i)     under the age of 18 years; or

              (ii)     a full-time student aged between 18 years and 25 years; or

              (iii)     a child with a disability;

        (c)     a stepchild of the deceased who, at the time of the deceased’s death, was—

              (i)     under the age of 18 years; or

              (ii)     a full-time student aged between 18 years and 25 years; or

              (iii)     a stepchild with a disability;

        (d)     a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was—

              (i)     under the age of 18 years; or

              (ii)     a full-time student aged between 18 years and 25 years; or

              (iii)     a child with a disability;

        (e)     a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death—

              (i)     would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

              (ii)     has either—

    (A)     not taken those proceedings; or

    (B)     commenced but not finalised those proceedings; and

              (iii)     is now prevented from taking or finalising those proceedings because of the death of the deceased;

        (f)     a child or stepchild of the deceased not referred to in paragraph (b) or (c);

        (g)     a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);

        (h)     a registered caring partner of the deceased;

              (i)     a grandchild of the deceased;

        (j)     a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased’s death;

        (k)     a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

Even if the applicant is considered an ‘eligible class of person’, they must then prove that there was a moral duty on behalf of the deceased to provide maintenance or support. Finally, it is important to relate al these elements back to the deceased’s estate and demonstrate that there was a failure to provide the required adequate provision.

What are the other General Considerations that Must be Made by the Court in Relation to a Will Contesting Application?

When contesting a will, it is also important that extenuating factors be considered in order to decide aa just and fair outcome. Some of these factors may include:

  • ● Any evidence for the reasoning behind the deceased decision for making the Will and bequeathing their assets as they did;
  • ● Evidence of the relationship between the applicant and the deceased;
  • ● Any responsibilities or obligations the testator had to the claimant;
  • ● The character and conduct of the applicant;
  • ● Any physical or mental disabilities that the claimant has that may be relevant to their case;
  • ● What financial resources the applicant has at their disposal in relation to their needs and the resources at the disposal of the deceased.
  • What is an Example of a Criminal Record Impacting a Will Contesting Case?
  • A ‘criminal record’ is not considered grounds for barring an applicant in it’s own right, however it can arguably contribute to what the Court considers ‘other matters deemed relevant’. To better illustrate this point, we have mentioned a case study directly relating to this below.
  • In the case of Hastings v Hastings (2008), Justice White said the following influential words during the court process, “a criminal record is not as such to bar a claim for further provision”. He drew this conclusion from an earlier case of Hadley v Hoadley (17 February 1987) which acted as a precedent for his decision. In that case, an adult child had spent over twenty years in prison was asking for provision. It was decided that, despite the sentence, the parents still had moral duty to look after their son, and that the resources provided in the estate could serve to help rehabilitate them.
  • In the case of Hastings v Hastings, however, the applicant’s prison sentence did have some bearing over the final decision. In this case, the testator had bequeathed her entire estate (a sum of $600,000 AUD) to one child, John, and left nothing to the other, Phillip, who had a convicted history of drug trafficking and abuse. Phillip contested this in court through the family provision act.
  • Unfortunately for Phillip, he was barred. This was not made on the grounds of Phillip’s earlier convictions. However, it did play a role in the overall consideration of Phillip’s character. Other considerations made were that Phillip had rarely visited the deceased in their lifetime. He was also held accountable for his own poor circumstances and health, due to drug use.
  • This type of discrimination can occur in the legal system unfortunately. These were the closing words by Justice White regarding the Hastings v Hastings (2008) case:
  • “The deceased was well able to judge the relative dessert of her children. The defendant had substantial claims on her as she recognised.  The plaintiff’s character and conduct, the fact that his financial needs are due to his own fault, the shame his conduct brought on the deceased and the family, and the very slight contact he had with his mother during his adult life, indicate that he does not have a legitimate claim on his mother’s property.  That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life” – Justice White.
  • Summary
  • In summary, a criminal record does not directly bar a claimant, however it can reflect negatively in court when considering extenuating circumstances – such as the character of the applicant.
  • No two cases are exactly the same. We recommend that you find an experienced estate lawyer to handle your case and assist in helping you with your claim.
  • It is important that you contest a will as soon as you have seen it and feel that there is an injustice. Estate funds tend to be sold or transferred within a short period of time, and once they have it is not possible to make a claim.
  • If you are looking for some assistance in determining whether you have a case, we recommend that you contact an experienced estate lawyer today. An application generally has to be made within six months of the grant of probate or letters of administration.
  • A quality estate lawyer will discern whether basic conditions have been met, and will also determine whether the deceased had a moral duty to provide for you at the time of their death. Proceedings can be launched from this point.
  • The majority of estate disputes never progress to court and can be resolved without costly court proceedings. An estate lawyer should be able to talk to you about your case and help to resolve a case before any court action takes pace. Do not hesitate. Contact an estate lawyer today.
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