Under the Succession Act 2006 (NSW), certain individuals can make a family provision claim against a deceased person’s estate if they believe the Will, or the rules of intestacy, fails to make adequate provision for their proper maintenance, education, or advancement in life. This legal mechanism allows eligible persons, such as children, spouses, and dependents, to seek a share or a larger share of the estate.

A complex issue arises when the claimant, particularly a child, was estranged from the deceased prior to their death. This guide examines how estrangement affects eligibility and the assessment of family provision claims in New South Wales, exploring the factors courts consider and analysing relevant case law to clarify the legal position for estranged potential claimants.

Eligibility for Family Provision Claims in NSW

The Succession Act 2006 (NSW) outlines specific categories of individuals eligible to contest a will by making a family provision claim. Navigating these legal complexities can be challenging, especially when family relationships are strained.

These ‘eligible persons’ are typically those considered to have a close familial connection to the deceased and a potential claim to their estate. The Act recognises various family members as eligible, including:

• The deceased’s spouse
• Children (including adult children)
• Former spouses
• De facto partners

Our comprehensive article discusses eligibility to make a family provision claim in detail. A must-read!

The Impact of Estrangement on Eligibility

A common misconception is that estrangement from the deceased automatically disqualifies a person from contesting a will. However, the law in NSW recognises that family relationships are complex and that estrangement doesn’t necessarily negate the moral obligation of a parent to provide for their child.

In simple terms, being estranged does not inherently prevent a child from being eligible to make a family provision claim. The court will carefully consider:

• The circumstances of the estrangement
• Other relevant factors
• The overall family situation

Before deciding whether a child is entitled to a share of the estate, these factors will be weighed in the context of the specific case and family dynamics involved.

The Effect of Estrangement on Family Provision Claims

When a family member passes away, the law acknowledges that certain close individuals have a right to claim financial provision from the deceased’s estate. This is true even if the Will doesn’t include them or provides less than they believe is adequate. This process is known as making a family provision claim.

In New South Wales, these claims are governed by the Succession Act 2006 (NSW). The law recognises several important principles:

• Close family members may have legitimate claims despite being excluded from a Will
• Inadequate provision in a Will can be challenged through legal channels
• Specific legislative framework exists to handle such disputes

The Court considers a range of factors when assessing family provision claims, particularly when estrangement exists between the deceased and the applicant. Let’s delve into some of these key considerations.

Factors Considered by the Court

The Court adopts a holistic approach when evaluating family provision claims involving estrangement. It delves into the nuances of the relationship, examining:

• The reasons behind the estrangement
• The conduct of both the deceased and the applicant
• Whether reconciliation attempts were made
• The overall dynamics of their relationship

Imagine a scenario where a parent and child experienced a falling out due to differing life choices, leading to a prolonged period of no contact. The Court would investigate whether the estrangement was primarily instigated by one party and examine the broader context of their relationship history.

The Court also considers documentary evidence related to the deceased’s intentions. For instance:

• Whether the Will provides any reasons for the applicant’s exclusion or limited provision
• If a will explicitly states that an estranged child is being excluded due to a past conflict
• Any other written explanations left by the deceased regarding their decisions

Importantly, the Court considers whether the deceased had a moral duty to provide for the applicant. This duty is rooted in the societal expectation that parents, even when estranged, should provide for their children’s well-being. However, the degree of this duty can be influenced by the nature and circumstances of the estrangement.

The Importance of Financial Need

While estrangement is a significant factor, the Court also places substantial weight on the applicant’s financial needs and resources. It assesses whether the applicant can support themselves adequately, considering:

• Their income
• Assets
• Living expenses
• Overall financial situation

Consider a case where an estranged child faces financial hardship, struggling to make ends meet or afford suitable housing. In such a situation, the Court may be more inclined to grant a family provision order, even if estrangement existed.

Conversely, if the applicant is financially independent and enjoys a comfortable standard of living, the Court might be less likely to intervene, especially if the estate is modest.

The size and nature of the deceased’s estate also come under scrutiny. Several factors influence the Court’s decision:

• The composition of assets may affect how provisions can be made
• A larger estate might lead to a more substantial provision
• A smaller estate might necessitate a more modest distribution

Case Study: Turch v Tripolone [2020] NSWSC 117

Background of the Case

The case of Turch v Tripolone [2020] NSWSC 117 involved a family provision claim brought by a son, Mr. Turch, who had been estranged from his mother for 19 years prior to her death. The deceased mother died without a will, meaning her estate was to be distributed equally among her three children as per intestacy laws in NSW.

Mr. Turch contested this equal distribution, claiming that he had not been left adequate provision for his proper maintenance, education, or advancement in life. His claim was complicated by the lengthy estrangement between himself and his mother.

The estrangement stemmed from several significant factors:

• A family breakdown where the mother left the family home
• Family Court proceedings where Mr. Turch sided with his father
• His decision to support his father deeply hurt and angered his mother
• No reconciliation occurred during the 19-year estrangement period

Despite the long-term estrangement, Mr. Turch argued that he deserved a larger share of the estate. He based this claim on several grounds, including his assertion that he could have potentially served as a carer for his mother, who suffered from dementia, had she lived longer.

The Court’s Decision

The Court carefully considered the evidence presented, examining multiple factors relevant to the claim:

• The financial situations of all three children
• The history of their relationships with the deceased
• The size of the estate
• The fact that the deceased died without a will, suggesting an intention for equal division

Ultimately, the Court made several significant findings. It determined that:

• The estrangement could not be solely attributed to the mother
• Mr. Turch had not successfully proven a lack of proper provision from his mother’s estate
• The equal distribution under intestacy laws was appropriate in this case

As a result, the Court ruled against Mr. Turch’s claim, upholding the equal distribution of the estate among the three children.

Importantly, the Court ordered Mr. Turch to bear the cost of his legal fees for bringing the claim, as well as the estate’s costs for defending the claim. This case highlights that estrangement alone does not guarantee a successful family provision claim. The Court will assess a range of factors, including the conduct of both the deceased and the applicant, to determine whether adequate provision was made.

Case Study: Kitteridge v Kitteridge [2022] NSWSC 193

Key Facts of the Case

The case of Kitteridge v Kitteridge [2022] NSWSC 193 involved a family provision claim by an adult son, Lee, who contested his mother’s will. The deceased had left almost her entire estate to her youngest son, who was also named executor, and nothing to her two older sons. The will specifically stated that no provision was made for the older sons as they had “refused to have any contact” with her for many years.

The deceased made seven wills throughout her life, consistently referencing Lee and expressing her belief that he had abandoned her in favour of his wife and her family. This pattern of exclusion was documented across multiple versions of her will.

The estrangement began after several significant family events:

• The deceased and Lee’s father separated and eventually divorced
• Lee’s father moved into Lee’s home and resided with him for many years
• The deceased resented Lee for this, believing he had taken his father’s side
• The relationship further deteriorated during a family provision claim the deceased made against her own parents’ estates, in which Lee testified against her

Subsequently, all contact between Lee and his mother ceased, and the deceased never met Lee’s children.

The financial situations of the parties involved were notably different:

• Lee and his wife were nearing retirement and did not own property
• They hoped to use funds from the estate to purchase a home
• The youngest son and his wife owned property and resided in the deceased’s home
• The youngest son hoped to inherit the deceased’s home

The estate’s total value was estimated at $2,500,000, making it a substantial asset at the centre of this family dispute.

The Court’s Considerations

The Court acknowledged the deceased’s clear intention to exclude Lee, but emphasised that this did not prevent it from exercising discretion and ordering further provision. The Court had to determine whether adequate provision had been made for Lee.

The Court considered several key factors in its assessment:

• The deceased’s moral duty to provide for Lee as his mother
• This duty being rooted in the community standard of parents caring for their children
• The circumstances of the estrangement and who was responsible
• The substantial size of the estate ($2,500,000)

In examining the estrangement, the Court found that it stemmed from the deceased’s belief that Lee had sided with his father, putting Lee in an impossible position. Therefore, the deceased, not Lee, was primarily responsible for the estrangement, and the moral duty remained.

Considering all factors, the Court ordered a $460,000 provision for Lee, with the remainder going to the youngest son.

This case illustrates several important principles:

• Provision is likely in most other cases, particularly when the parent bears responsibility for the breakdown in relationship
• Parents have a real obligation to provide for their children, even when estrangement exists
• Courts are hesitant to completely exclude children, especially when estates are substantial
• While a child-initiated and maintained estrangement might justify exclusion

Practical Considerations for Estranged Claimants

Gathering Evidence

If you are an estranged child considering a family provision claim in NSW, documentation of the estrangement is crucial to strengthen your position. This includes preserving evidence of the reasons for the estrangement, such as:

• Letters
• Emails
• Text messages

Additionally, it’s beneficial to gather evidence of any attempts at reconciliation, as this demonstrates your willingness to mend the relationship.

Demonstrating Financial Need

The court carefully considers the applicant’s financial circumstances when evaluating family provision claims. You must clearly articulate your financial needs by providing supporting documentation such as:

• Bank statements
• Pay stubs
• Evidence of debts or expenses

This documentation helps the court assess whether the will adequately provides for your proper maintenance, education, or advancement in life.

The Role of Legal Advice in Family Provision Claims

Assessing the Strength of Your Claim

Navigating the complexities of family provision claims, especially in situations of estrangement, can be emotionally challenging and legally intricate. An experienced family provision lawyer can assess the strength of your claim in light of the estrangement.

They can analyse the specific circumstances of your case, including:

• Reasons for estrangement
• Any attempts at reconciliation
• Your financial needs
• The size of the estate

This professional assessment helps you understand the merits of your claim and the potential outcomes before proceeding further.

Navigating the Legal Process

Seeking legal advice from experienced family provision lawyers in NSW is crucial for anyone considering making or contesting a claim. Family provision applications involve strict legal processes and timelines.

A lawyer can guide you through each step:

• Drafting the application
• Gathering evidence
• Representing you in court proceedings

Their expertise ensures that your claim is filed correctly, deadlines are met, and your case is presented effectively to maximise your chances of success.

Conclusion

Navigating family provision claims in NSW, particularly when estrangement is involved, requires a clear understanding of eligibility, the legal framework under the Succession Act 2006 (NSW), and how courts evaluate such cases. As highlighted by decisions like Turch v Tripolone [2020] NSWSC 117 and Kitteridge v Kitteridge [2022] NSWSC 193, estrangement alone does not automatically disqualify a child from contesting a will; the court meticulously examines the reasons for the estrangement, the financial needs of the claimant, and the deceased’s moral obligations.

Given the emotional complexities and legal intricacies of these situations, seeking professional guidance is essential. If you are an estranged family member considering a family provision claim, consulting with experienced NSW Wills & Estates lawyers can help assess the strength of your case and ensure your rights are properly represented. Contact PBL Law Group today for expert legal advice tailored to your circumstances.

Frequently Asked Questions