The question of what is appropriate provision in someone’s Will can be complicated. Attwood Marshall Lawyers Estate Litigation Associate, Martin Mallon, discusses the issues that can arise from parents ‘disinheriting’ their children and not providing for an estranged child.
Not all families live harmoniously and remain close throughout their lifetime. Conflict among families is common and relationships between adult children and their parents can break down for many reasons.
It is estimated that as many as one in 12 families have been impacted by estrangement, with around one in 25 Australians reporting an issue between family members.
One of the most common reasons for estrangement is family disagreement, including disputes over inheritance, parenting style, divorce or choice of partner.
Some people become estranged from their family because of emotional, physical or sexual abuse during childhood or beyond.
The question of what is appropriate provision under a Will for an adult child is complicated and quite emotive with polarised views, particularly when relationships between adult children and parents have deteriorated. Many parents (and grandparents) believe they should be able to leave their assets to whomever they please. Naturally, these choices will be influenced by the relationships they have with their children or family members. Should the ‘black sheep’ of the family receive anything when they behave badly and treat their parents or grandparents poorly? Quite often, these ‘black sheep’ have sound claims against the estate, much to the surprise and chagrin of their siblings and other family members.
The fact that an adult child has had little contact with their parents and/or has behaved badly so that the relationship has totally broken down may not necessarily exclude them from bringing a claim against the estate when their parents die. As with most legal issues, each case is decided on its own facts and it is difficult to provide a ‘one size fits all’ answer to this question.
Family Provision Applications brought by an estranged child
For those who die without a valid Will, their intentions may not be passed on and their estate will be distributed under the laws of intestacy. Each jurisdiction in Australia has different rules on who a person’s next of kin are and what portion of the estate they will inherit.
Depending on the circumstances, this could mean that the assets of the estate will be distributed to the estranged children or parents, even if there has been no relationship between the parties for many years.
If a parent is wanting to exclude a child from their Will, it is recommended they seek specialist legal advice to develop an estate plan that can mitigate the risk of the Will being challenged after they pass way.
It is important to be aware that if you choose to leave a child out of your Will, that child is an eligible person to contest the Will and seek further provision from the estate.
Time limitations to bring a claim against an estate
There are strict time limitations that apply to family provision applications. Each jurisdiction has different timeframes and processes and it is important to act quickly.
In Queensland, a claimant (including an estranged child) has 6 months from the date of death to provide written notice to the Executor or administrator of the estate of his/her intention to bring an application for further provision against the estate. If you don’t give formal notice within the required time limit, the assets of the estate may be distributed, and your rights may be severely impacted and prejudiced (see S.44(3)).
An applicant must then file formal Court proceedings within 9 months from the date of death. If you do not lodge formal Court proceedings within this timeframe, your right of action may be lost forever.
In New South Wales, the time limits vary to Queensland. A claimant must file formal proceedings within 12 months from the date of death.
There are limited circumstances when a person can bring a claim outside these timeframes. In these cases they will need to seek leave of the Court.
Entitlement to a copy of the Will
When a person is estranged from a family member, they may not be given a copy of the deceased’s person’s Will. Further, the estranged child may not know when the estranged family member passed away. This is important because, the time limitations commence from the date of death.
Section 33Z of the Succession Act 1981 (Qld) outlines who is entitled to a copy of a deceased person’s Will. A person who has possession or control of a Will of a deceased person must, if asked, do either or both of the following:
- Allow an entitled person (which includes an estranged child) to inspect the Will; and
- Give the entitled person a certified copy of the Will on payment of the person’s reasonable expenses by giving the certified copy
It is recommended to write to the Executor of the estate to request a copy of the Will if you have not been given one. You must act quickly if you feel you have been left without adequate provision from the estate.
General considerations in Family Provision Applications
If a child contests a Will, a Court will weigh up the child’s need for provision from the estate by determining what moral duty the parent had to provide for their child. The Court will also review what the parent’s wishes were as instructed in their Will.
The Court will examine all relevant circumstances including but not limited to:
- the relationship between the applicant and the deceased person;
- any obligations or responsibilities owed by the deceased person to the applicant;
- the value and location of the deceased person’s estate;
- the financial circumstances of the applicant, now and in the future;
- whether the applicant is financially supported by another person;
- whether the applicant has any physical, intellectual or mental disabilities;
- the applicant’s age;
- any contribution made by the applicant to increase the value of the estate;
- whether the deceased person has already provided for the applicant during their lifetime or from the estate;
- whether the deceased person provided maintenance, support or assistance to the applicant;
- whether any other person is responsible to support the applicant;
- the applicant’s character;
- any other claims on the estate;
- any other matter that the Court determines is relevant.
How does the Court view estrangement when considering a claim against an estate?
The mere fact of estrangement between a parent and child, does not automatically disentitle a child from bringing a claim for further provision from the estate (Palmer v Dolman  NSWCA 361). The Court will review all the circumstances and facts of the matter.
Estrangement may be caused by one, or both, parties. If the estrangement is a fault of both parties, the Court may look more favourably on the application from the estranged child.
If an application for further provision is made by an estranged child, the provision awarded by the Court may be less than if it was made by a child who had a close relationship with the parent.
In Queensland, section 41(2)(c) states that the Court may refuse to make an order in favour of any person whose character and conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
There have been cases where the estrangement has been considered so serious that the claim was dismissed (see Underwood v Gaudron  NSWSC 1055).
Each case is different and will be reviewed based on its own unique merits. It is recommended that a person seeks independent legal advice from someone who practices in estate litigation to provide advice on your prospects of success.
Resisting an application from an estranged child
Where a Will has been drafted correctly, there will likely be reasons outlined within the document as to why family members may be left out of the Will or left with substantially less than others.
A Court will review all this information, as well as any other evidence that is gathered from other children that may be able to provide insight as to why the parent did not wish to include a child in the Will.
Steps to take to make a claim for further provision from an estate
In order to seek further provision from an estate, the following are the simple steps to take to make a claim:
Step 1: Contact Attwood Marshall Lawyers Estate Litigation team for a free 30-minute consultation to discuss your matter. From this conversation our lawyers can ascertain your prospect of success and a preliminary view on your likely range of award.
Step 2: We will send you the relevant documents and indicate what the process is moving forward.
Step3: Your lawyer will gather evidence and attempt to resolve the matter with the Executor or Administrator at an early stage. This includes placing the Executor on notice of your intention to bring a claim for further provision from the estate to protect your interests.
Step 4: If we are unable to resolve the matter with the Executor or Administrator, we will file formal Court proceedings. In most instances, the matter will be resolved at mediation, usually before trial.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this area.
With offices located in Brisbane, Robina Town Centre, Coolangatta, Kingscliff, Sydney and Melbourne, you can make an appointment at a location most convenient to you.
Will disputes and Succession Law can be extremely complex. The law differs between states and territories. An expert Estate Litigation and Will dispute lawyer who has industry leading knowledge and local experience can help you achieve a positive outcome in the most cost-effective way.
Most cases are accepted on a ‘no win, no fee’ or deferred payment basis. There are no costs required up front to commence your claim (subject to our determination of you having reasonable prospects of success).