Estrangement – are you in or are you out?

Although unfortunate, it is common that parent and child are unable to forge out their issues. However, the result in some circumstances means their relationship is marred by estrangement.

Estrangement between a deceased and a child seems to be a recurring issue that is raised with me by clients involved in a family provision claim. Determining whether estrangement is a contributing factor in a family provision claim is not clear cut, as there are many complex issues for the Court to consider.

Below I have set out some questions I am often approached with.

Can an estranged child make an application for further provision against their parent’s estate?

Yes. In Queensland, a child can make an application for further provision from their parent’s estate, regardless of their estrangement.

Over the past 15 years, there have been a number of cases which have included comments in relation to estrangement. In the case of Foley v Ellis [2008] NSWCA 288, Sackville JA states:

“The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant”.

Does the Court take into consideration the estrangement when determining a family provision application?

The theme is that estrangement is taken into consideration by the Court where the estrangement has largely been caused by the applicant, and no reconciliation has occurred.

In the case of O’Donnell v Gillespie [2010] QSC 22, the applicant became estranged from the deceased after leaving the family farm, the applicant had no communication with the deceased up until his death, and the deceased had disinherited the applicant, making no provision for the applicant in his will. The court considered the estrangement an issue and the applicant was ordered to receive provision of 5.38% of the estate.

However, where the estrangement was caused by the deceased and reconciliation was not possible, the court will likely disregard the allegation of estrangement. The court will also likely disregard the allegation of estrangement if there has been an estrangement, and then a reconciliation before death.

What can you do if you are not making provision for an estranged child in your will?

If you are considering disinheriting an estranged child, it is important that you seek advice in relation to your estate plan, and what risks are at play. Things like making a statutory declaration describing the circumstances of the estrangement from your child may be beneficial, however, it will not prevent an application for further provision being made against the estate.

Issues of estrangement in family provision applications must be assessed on a case by case basis. There is no hard and fast rule. If you are estranged from your child and wish to consider the risks in your estate plan, or if you are the legal representative of an estate where there is a risk of a claim by an estranged child, please do not hesitate to contact me.

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