It is generally assumed that where a child is estranged from their parents, particularly in circumstances involving hostility or disentitling conduct on the child's part, that the parent is entitled to disinherit them. This begs the question, can an estranged child contest the will?

Family Provision: The Effect of Estrangement

In cases involving estrangement, society generally accepts that a parent is no longer morally obligated to provide for that child and therefore is entitled to disinherit them. However, no law gives a parent the absolute right to disinherit a child simply because they are estranged. Family Provision operates as an exception to testamentary freedom; it may provide an avenue for an estranged child to contest their parent's will.

In NSW, under the Succession Act, a child of the deceased is automatically eligible to make a family provision claim. The mere fact of estrangement will not remove a child's eligibility, and the material question before the court will be whether the child has been left without adequate provision for their maintenance, education or advancement in life. Nonetheless, estrangement will be a relevant factor in the court's determination, and the court will consider the circumstances surrounding the estrangement, including the cause of estrangement, whether one party bore responsibility for the estrangement and whether either party made any attempt at reconciliation.

The Relevant Legal Principles

The broad legal principles relating to the effect of estrangement in relation to family provision claims have been discussed in a number of cases. These principles are as follows:

The nature of the estrangement and the underlying reasons for it are relevant considerations. The mere fact of estrangement on its own will not ordinarily result in a child being unable to establish a family provision claim, and there is no rule which allows estrangement to extinguish an applicant’s claim, irrespective of the circumstances.

Estrangement will be a relevant factor, even where the applicant was not responsible for the estrangement. The poor state of the relationship between the applicant and the deceased in cases of estrangement may terminate or reduce the deceased’s obligation to provide for the applicant.

It should be accepted that, depending on the circumstances, the deceased may have been entitled to make no provision for a child, particularly where a child has been hostile or callous in their treatment of their parent.

The court should consider the applicant's character and conduct in relation to the estrangement; however, care should be taken not to oversimplify the complex and nuanced nature of family relations by yielding to the temptation to categorically condemn the behaviour of either party.

Family provision cases are not determined by the criterion of the affection, admiration, or love of the deceased for members of their family, and a provision may be made contrary to the testator’s wishes.

Estrangement is not descriptive of either party's conduct; it is merely a condition that results from either or both parties' conduct or attitudes to the relationship. Whether estrangement causes an applicant's claim for family provision to be extinguished or merely reduced will depend on the circumstances of the case.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.