It is often a strongly held community view that in circumstances where a child is estranged from their parents, or has behaved badly toward them, that parent is entitled to leave that child out of their Will, or reduce any provision they may otherwise have made.

Regardless of the community’s expectations on the subject, the legal position is a little more complex. Under the Succession Act 2006 (NSW), a child is an eligible person to make a claim for provision, or further provision, from the estate of their late parent.* However, estrangement issues alone do not determine the outcomes of such cases, and ultimately should an estranged child make an application for provision, the ultimate outcome would be highly dependent on the circumstances of the case and factors including but not limited to:

• The circumstances of the estrangement and behaviour
• The child/claimant’s financial need
• The interests and needs of any other competing beneficiaries
• The wishes of the deceased
• The size of the estate
• The nature and extent of any obligation that the deceased person had toward  the child, or any other person
• Whether the child was maintained by the deceased person
• The health & age of the child
• Any contribution made by the child to the deceased’s estate
• Any other matter that the Court considers relevant

Recent Supreme Court Decisions

In a recent case before the Supreme Court, the plaintiff, being the daughter of the deceased, made a claim for provision against the estate of her late estranged parent, who had made no provision at all for the daughter in the Will. The case was an interesting one and quite complex as quite apart from the issue of the estrangement (which was over a 20 year period), the daughter had a few difficulties to overcome. The facts briefly were that:

• The daughter had been estranged from her parent for some 20 years. The  evidence demonstrated that the daughter had made no attempts whatsoever to  make contact with the parent

• The parent had made no provision at all for the daughter on account of this  estrangement and provided an explanation in the Will as to why.

• The parent had made provision for the other two children who had been  supportive and close to the parent

• The daughter filed her claim some 3 years out of time and did not have any  adequate explanation for the delay (at least not to the Court’s satisfaction)

• At the time of the application being filed, the estate was already distributed to  the beneficiaries

• There were complex issues of notional estate (if the Court decided that an Order  should be made in favour of the claimant daughter)

• In any event, even if the estate had not been distributed, the estate was small

• There had been previous Court proceedings between the daughter and the  deceased parent and evidence that the daughter had been violent toward the  deceased

In taking into account all of the above factors, and in considering carefully all the relevant provisions of the Succession Act 2006 (NSW), the Court found, in summary:

1. That the deceased had given proper consideration in  determining how to  accommodate the competing claims on her estate (that is, the other two  children) and that the deceased was entitled to take into account the  behaviour  of the daughter. As such the Court found that there had been no failure on the  part of the deceased person to make proper provision for the daughter’s  maintenance, education and advancement in life

2. Whilst that determination alone was sufficient to dismiss the daughter’s claim,  the Court also found that there had not been a satisfactory explanation for the  delay in bring proceedings, and therefore the daughter failed on that count too.  The fact that the estate had been distributed and spent by the beneficiaries, and the prejudice to them of any Order in favour of the claimant, were also taken into account

3. Lastly the Court also found that it would not have made an order for notional  estate.

The above case is only one example, and estrangement between parents and children does not automatically mean that a child will not succeed in a claim for provision. There have been several other decisions of the Supreme Court where there were similar periods of estrangement, however due to other facts and circumstances of the case, the Court did allow some or further provision.

In another recent case before the Supreme Court of NSW, an estranged child succeeded (albeit on Appeal) in her claim for further provision (some small provision having been made by the deceased), and even though the estrangement was significant and not in dispute or questioned by the Court, in the circumstances and facts of that particular case, the Court held it was not appropriate for her share in the estate to be reduced to the extent that it had by the deceased.

In summary, each case is distinguishable and determined on its own facts. It is difficult, and indeed one cannot generalise as to how the Court will determine an application involving issues of estrangement as there are several matters that the Court must balance together with consideration of the relevant facts, legislative provisions and case law.

TERESA DODARO
Senior Associate
Edwards Family Lawyers

*Please refer to the Family Provision & Estates page on our website for general information on claims under the Succession Act 2006