Can even a spouse or partner disentitle themselves – as a result of their conduct towards the deceased – from receiving what would ordinarily be a fair proportion of a deceased’s estate?

Consider the case of James Coss who was left a property in the eastern Sydney suburb of Rosebery with a net value after mortgage debt of $200,000 by his de facto partner David Norman.

A spouse's or partner's conduct towards a deceased can disentitle them so they only get a diminished estate shareDavid had died tragically by suicide in September 2019 and had no children.

He made four wills in the months before his death. By the last will, made nine days before, he appointed his sister Fiona as his executor and left his remaining estate – worth in excess of $730,000 – to his three siblings with Fiona to receive the lion’s share.

James – who had been in a relationship with David from 2012 until he moved out in May 2019 – filed an application seeking further provision from the estate.

Justice Guy Parker in the NSW Supreme Court held that Mr Coss failed to show any reason why the provision made for him under the will was inadequate.

He considered the de facto’s violent conduct towards the deceased to have been “disentitling” and the explanation in the will for a reduced benefit to James to have been cogent.

His Honour, in observing that such violence was a “major disentitling factor” noted that the Court should not “be seen to downplay, and much less to reward, behaviour of that kind”.

Having regard also to serious doubts as to James’ credibility, Justice Parker concluded that it was more likely than not that – if a full determination of the pros and cons had been undertaken – the resulting benefit to him would have been less than the sum left under the will.

Coss v Norman [2021] NSWSC 1464 Parker J, 5 November 2021 Read case