Can an Estranged Adult Child Still Make a Successful Contested Family Provision Claim on a Parent’s Will?

Contesting a Will with a family provision claim usually arises because a person has been left out of a Will or has not received what they believe to be a fair share of the estate of the deceased. The Court’s decision in such cases will be based on a number of factors that directly relate to the individual circumstances.

If a parent dies, leaving inadequate financial provision for an estranged adult child, the fact of the estrangement does not itself invalidate the child’s claim. Indeed, if the estranged child can demonstrate their need for provision, the Court may well grant provision from the estate notwithstanding the estrangement and disinheritance.

The following case studies outline Will contest cases involving estranged children but with differing outcomes.

Case studies

Kitteridge v Kitteridge (2022) 

This recent NSW Supreme Court case involved a claim by an adult son (Lee) who contested a Will made in 2017. Almost the entire estate of Lee’s mother was left to a youngest son who was also named as Executor. Two other sons were also left nothing. The deceased included a clause in her Will explaining that this was because they had refused any contact with her for many years. The estate consisted of a property in Lane Cove, Sydney and monetary assets amounting to $2.5m in total. Lee brought a family provision claim.

The Court found that the estrangement had largely arisen because of the acrimonious separation of the deceased and Lee’s father. The circumstances were that Lee was put in a difficult position in which he effectively was made to choose between his father and mother. The estrangement, it was suggested, was primarily at the volition of the mother rather than Lee, and so a moral duty owed to Lee continued.

At the time of the mother’s demise, Lee and his wife were approaching retirement and did not own a property, whereas the youngest son owned a property and resided in the Lane Cove house.

The Court ordered that an amount of $460000 be awarded to Lee with the residue of the estate to the youngest son. 

Jodell v Woods (2017)

In this Supreme Court case a 99 year old mother left her 73 year old estranged daughter out of her Will, leaving the entirety of her $2m estate to her 66 year old daughter. This was contested by the older daughter. The Court found that, after the father’s death, the elder sister had tried to repair relations with her mother, but these attempts were rebuffed. The Court commented that the ‘mother should not have been blind to the needs of one of her two children’ and the elder daughter was awarded $425000.

The law does provide for consideration of the ‘character and conduct’ of the applicant and that this must be a factor in assessing the relationship and the reason for being left out of a Will.

Larkin v Leech-Larkin (2017) 

In this Supreme Court case, the application for a family provision order was unsuccessful. This case also involved an acrimonious separation of parents. Julien, the eldest son, remained in contact with his father. This contact was the primary cause of the estrangement with his mother.

A younger brother, Lucien, on the other hand, had a particularly close relationship with the mother and lived with her in the Blue Mountains. 

The deceased died in 2015, aged 88 years, leaving her entire estate to Lucien. The estate was valued at $680000.

Julien, who was by then 68 years old, made a family provision claim. While he was in financial need with a permanent disability he had been estranged from his mother for 40 years and had made no attempt to contact her to repair the relationship. On the other hand, Lucien had contributed all his efforts and finances into the Blue Mountain property. If Julien had been awarded a provision Lucien would not have been able to stay there, contrary to the mother’s wishes.

The illustrated cases demonstrate the complexity of situations involving estrangement and the range of factors that have to be taken into account. The Court will review all the relevant circumstances and facts.

How does the Court view estrangement when considering a claim?

Eligibility to lodge a family provision claim is limited to a number of key groups. An estranged child is still eligible to make a claim and contest a Will. Being eligible is not, of course, the same as being certain of being successful. 

Estrangement can be caused by the deceased, the disinherited child, or mutually. In these circumstances, the Courts recognise that disagreements can occur between the parent and child and a ‘wise and just testator’ (Will-maker) is taken to understand this. The Courts will consider which party was primarily responsible for the estrangement and whether any effort was made to repair the damage to the relationship. Where the estrangement is the fault of both parties the Court may look more favourably on the application from the estranged child.

The Courts will also consider whether the Will or other documents offer an explanation as to why an estranged child has been left out of the Will. Where the child is simply omitted the applicant may have a better chance of a successful claim compared to a situation where the Will-maker has given a reason for not including them. 

How much will the Court award?

As well as being relevant as to whether a family provision claim is successful, these considerations also play a role in determining the size of any award to be granted. If an application 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.

Contact our Contesting a Will Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experienced practitioners in preparing Wills and advising on contested Wills. If you are considering making a family provision claim, it is recommended that you contact us for an assessment of your case. Please contact us on 02 9281 5088 or make an online enquiry.