When someone dies in New South Wales, their Will decides how their stuff gets shared out. According to the Succession Act 2006, people who think they didn’t get a fair share can contest the Will by making a family provision claim. Now, here’s where it gets interesting: what if a person hadn’t talked to their parent for a while? Does not being close mean they lose their chance to claim? There might be a surprise here for those wondering.
This article will explore the impact of estrangement on family provision claims in NSW. We will delve into the eligibility criteria for making a claim, examine how courts consider estrangement when assessing these claims, and analyse two significant cases, Turch v Tripolone and Kitteridge v Kitteridge, to illustrate the complexities of such situations.
Eligibility for Family Provision Claims in NSW
Navigating the legal complexities of wills and estates in NSW can be challenging, especially in situations involving family estrangement. This section explains who can contest a will in NSW and how estrangement might impact an individual’s eligibility to make a family provision claim.
Who Can Contest a Will in NSW?
The Succession Act 2006 (NSW) outlines specific categories of individuals eligible to contest a will by making a family provision claim. 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, and 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 and other factors before deciding whether a child is entitled to a share of the estate.
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 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 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 and the conduct of both the deceased and the applicant.
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, if attempts were made to reconcile, and the overall dynamics of their relationship.
The Court also examines whether the deceased’s Will provides any reasons for the applicant’s exclusion or limited provision. For instance, if a will explicitly states that an estranged child is being excluded due to a past conflict, this could impact the Court’s assessment.
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, and living expenses.
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. A larger estate might lead to a more substantial provision, while a smaller estate, might necessitate a more modest distribution.
Speak to a Lawyer Today.
We respond within 24 hours.
Case Study: Turch v Tripolone [2020] NSWSC 117
Background of the Case
This case 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 amongst 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.
The estrangement stemmed from a family breakdown where the mother left the family home. The relationship further deteriorated due to Family Court proceedings where Mr. Turch sided with his father, a decision that deeply hurt and angered his mother. Despite the estrangement, Mr. Turch argued that he deserved a larger share of the estate, citing his potential role as carer for his mother, who suffered from dementia, had she lived.
The Court’s Decision
The Court carefully considered the evidence presented, including the financial situations of all three children, the history of their relationships with the deceased, the size of the estate, and the fact that the deceased died without a will, suggesting an intention for equal division. Ultimately, the Court found that the estrangement could not be solely attributed to the mother. The Court also determined that Mr. Turch had not successfully proven a lack of proper provision from his mother’s estate.
As a result, the Court ruled against Mr. Turch’s claim, upholding the equal distribution of the estate amongst 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
This case 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 stated that no provision was made for the older sons as they had “refused to have any contact” with her for many years.
Key Facts of the Case
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. The estrangement began after 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 ceased, and the deceased did not meet Lee’s children.
At the time of the decision, 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, however, owned property and resided in the deceased’s home, hoping to inherit it. The estate’s total value was estimated at $2,500,000.
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 the deceased’s moral duty to provide for Lee as his mother, a duty rooted in the community standard of parents caring for their children. However, estrangement can erode this duty, depending on the circumstances. In this case, the Court found that the estrangement 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 the substantial estate size, the Court ordered a $460,000 provision for Lee, with the remainder going to the youngest son. This case illustrates that 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, provision is likely in most other cases.
Get legal advice you can rely on.
Contact us today.
Practical Considerations for Estranged Claimants
If you are an estranged child considering a family provision claim in NSW, there are several practical steps you can take to strengthen your position.
Gathering Evidence
Documentation of the estrangement is crucial. This includes preserving evidence of the reasons for the estrangement, such as letters, emails, or text messages. It’s also beneficial to gather evidence of any attempts at reconciliation, demonstrating your willingness to mend the relationship.
Demonstrating Financial Need
The court carefully considers the applicant’s financial circumstances. You must clearly articulate your financial needs, providing supporting documentation such as bank statements, pay stubs, and evidence of debts or expenses. This 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
Navigating the complexities of family provision claims, especially in situations of estrangement, can be emotionally challenging and legally intricate. Seeking legal advice from experienced family provision lawyers in NSW is crucial for anyone considering making or contesting a claim.
Assessing the Strength of Your Claim
An experienced family provision lawyer can assess the strength of your claim in light of the estrangement. They can analyse the specific circumstances of the case, including the reasons for estrangement, any attempts at reconciliation, your financial needs, and the size of the estate. This assessment helps you understand the merits of your claim and the potential outcomes.
Navigating the Legal Process
Family provision applications involve strict legal processes and timelines. A lawyer can guide you through each step, from drafting the application and gathering evidence to representing you in court proceedings. Their expertise ensures that your claim is filed correctly, deadlines are met, and your case is presented effectively.
Conclusion
Navigating family provision claims in New South Wales involves understanding the legal framework, eligibility criteria, and the court’s approach to estrangement. As demonstrated by cases like Turch v Tripolone and Kitteridge v Kitteridge, estrangement itself does not automatically bar a child from receiving a share of their parent’s estate.
The court considers a multitude of factors, including the reasons for estrangement, attempts at reconciliation, the applicant’s financial needs, and the overall circumstances of the case. Seeking legal advice is crucial for estranged individuals considering a family provision claim, as it can help assess the strength of their case and ensure their rights are protected.
Protect your future with tailored legal solutions. Call us today.
