If my child is estranged from me, do I need to provide for them in my Will?

Our intricate relationships with family members can be affected by many things, such being the nature of close and personal emotional relationships. Family affairs can be joyful, strained, or both, and it is not uncommon for a family to experience estrangement.

Excluding a child from your Will due to estrangement may cause your estate to be involved in costly litigation which may reduce the overall amount your preferred beneficiaries are able to receive.

 

What is estrangement?

A simple definition of estrangement is the separation of people: a family member ceases contact with the family, and stops attending or being invited to family events. It may last for a year or two, or it may go on for decades.

Perhaps a more useful description from a significant estrangement case is: “the condition that results from the attitudes, or conduct, of one, or both, of the parties”. In that case, the court was asked to determine whether $10,000 of an $800,000 estate was adequate provision for a child from whom the deceased mother had been estranged for 35 years.[1]

 

Was $10,000 enough?

Expressed as a percentage, $10,000 equates to about 1.25% of the mother’s estate of $800,000.

First, the court found that it was enough: “withholding love, support and almost complete rejection of the mother meant that the adult child abandoned and forfeited any moral claim on the deceased”.

That decision was appealed. The estranged daughter was successful on the basis that the estrangement could not completely extinguish the moral claim of an adult child on a parent’s estate. The court ordered an additional $50,000 to the daughter by way of family provision. So, in this case and its circumstances, the court determined that 7.5% of the estate was adequate and proper for the estranged daughter’s advancement in life.

 

Is there a magical mathematics calculation?

No: the fluidity of concepts like ‘community values’ together with the variables of each family and relationships within it make it impossible to take a ‘one size fits all’ approach. Each case will depend on its individual facts and circumstances.

The court has 16 categories it may consider when deciding whether to make orders for family provision, and what amount, including:

  1. The nature and duration of the relationship between the applicant and deceased person,
  2. The deceased’s obligations or responsibilities to others,
  3. Contributions of the applicant to the deceased’s estate, welfare, and family,
  4. Provision made for the applicant during the deceased’s life, and in their Will,
  5. Any evidence of the deceased’s testamentary intentions,
  6. The applicant’s character and conduct (before and after death).

 

The blame game

Who is at ‘fault’ for an estrangement will likely have a different answer, depending on who is asked. The surrounding circumstances of an estrangement are relevant as the court may consider the applicant’s character and conduct, as well as any other person’s character and conduct, before and after the deceased’s death.

 

Nastiness

After an estrangement, if a person behaves callously, or acts with hostility, the court has noted that such negative behaviour justifies restraint when the court is determining what amount of provision to order. However, there are cases where there has not been any such behaviour, and a claim was dismissed, due to other relevant factors.

 

How do I avoid an estranged child from making a claim on my estate?

You cannot. If you intend to make, or have made, a Will that largely or completely excludes out one of your children, it is important that you obtain legal advice.

Evidence of your thought process as a wise and just will-maker may be called for once you are gone.

Particularly as you will not be able to corroborate one or the other child’s version of events, or confirm the accuracy of what the court is told you said, letters or statements written or signed by you may be submitted to the court for consideration in a family provision claim.

 

Conclusion

Today’s community standards and moral obligations mean there are limited circumstances where a court will find that a parent is not required to leave anything to an adult child (or that leaving a very small percentage is adequate) who has ‘drifted away’ and become estranged.

Care needs to be taken and your intentions and thoughts properly documented. Our team can help navigate your estate planning and are here to help with your legal affairs.

[1] Andrew v Andrew [2011] NSWSC 115, Justice Hallen at 74(a) https://www.caselaw.nsw.gov.au/decision/54a6344a3004de94513d83c7

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