Australia: Thinking about your will? Wondering whether youre obliged to provide for an estranged child?

When I talk to clients about making a will, I quite often detect some tension between their belief that they have the right to choose exactly who will benefit from their estate and discomfort with their adult children's expectation that they will be the primary beneficiaries of the will.

Let's face it: family relationships can be tricky and no family is perfect.

How does the law deal with this tension between your wish to do what you please with your estate, and any obligation to provide for your adult children, especially if they are in need?

Basically, the law attempts to find a balance between these competing interests.

On one hand, the law respects a parent's right to leave their estate as they choose. On the other, it allows disappointed children to make a legal claim that they should be provided for (or receive additional provision) from their deceased parent's estate. A court may make an order for a child's proper maintenance, education or advancement if it is satisfied that there is justification for doing so.

Getting this balance right is always a challenge for the courts. They don't have an easy job.

Estrangement makes the situation even more complicated

If you are estranged from one or more of your children, the situation becomes more complicated.

Depending on circumstances, you may be able to reduce the child's benefit under your will or you may be able to deny them any benefit at all.

When an estranged child challenges a will by making an application for provision, the court will weigh the circumstances of the estrangement against the child's need for provision from the estate in order to determine what moral duty (according to prevailing community standards) the parent had to provide for the child.

In making a determination, the court will consider the following issues:

  • the family relationship between the child and the parent (including the nature and duration of the relationship)
  • the nature and extent of any obligations or responsibilities owed by the parent to the child
  • the character and conduct of the child before and after the parent's death.

The court will also look at the causes of the estrangement and may find fault with either or both the parent and the child. If the court deems it appropriate, it can make financial adjustments.

Let's take a look at how the courts have handled estrangement issues in a couple of common situations.

How is a court likely to decide a case when the parent is largely responsible for the estrangement?

In a Supreme Court case involving two daughters who were estranged from their father and left out of his will, the Court awarded each of them $425,000 from an estate of $3.2 million.

The estrangement had resulted from a dispute when the father divorced the daughters' mother. The daughters subsequently had no contact with their father for many years. The Court decided, after considering the facts, that the breakdown of the relationship with his daughters was largely, though not entirely, the fault of the father.

The father's estate appealed the judgment, but the Court of Appeal agreed with the Supreme Court. It decided that the estrangement existed, and had continued, partly because of the conduct of the father. It concluded that, at the time of their parents' divorce, neither daughter thought the estrangement would be permanent. While they had to take some responsibility for the estrangement and clearly regretted it, they were not the authors of the estrangement.

When deciding on the amount the daughters should receive from their father's estate, the Court of Appeal took the estrangement into account and awarded them 15% of the net estate (after the deduction of legal costs and the revaluation of the estate assets). This amounted to $390,000 each.

How is a court likely to decide a case when the child initiates and maintains the estrangement? Does an estranged parent's written explanation of the reasons for cutting that child out of their will have any bearing on the court's judgment?

In another Supreme Court case, a mother died, leaving three children and an estate worth $1.25 million.

She left nothing to her eldest son, but provided $100,000 for his eldest son, her grandson. The remainder of her estate was to be divided equally between her two other children.

In a letter, the mother explained that she had not provided for her son because he had become 'totally estranged from us without any explanation'.

When the eldest son brought legal proceedings, claiming that he should be provided for by the estate, the Supreme Court found as follows:

  • The mother's letter indicated that she had given the matter careful thought.
  • The mother wasn't obliged to provide for the son, because he was largely responsible for the estrangement.
  • The son hadn't made any genuine effort to reconcile with his mother.

When the son appealed the decision, the Court of Appeal agreed with the Supreme Court.

Things to consider if you are preparing a will and are estranged from one or more of your children

If you are preparing your will and you are dealing with an estrangement issue, your wishes may not bear much weight if you initiated and/or maintained the estrangement, and if your estranged child can demonstrate that they have need for provision from your estate.

It is important to be aware that, in every family provision claim, much will depend on the facts of the case. The courts will look at each situation and try to determine the degree of responsibility of each of the parties for initiating and maintaining the estrangement, as well as the needs of the claimant and their siblings.

In the end, while estrangement can be a legitimate reason to reduce a child's provision from your estate, the court might not agree that estrangement was a valid reason for partially or totally cutting an adult child out of a will, especially if the child has need for provision.

That being said, there are steps you can take to reduce the chances of a claim being made against your estate by an estranged child, and to make it more likely for a court to respect and uphold your final wishes.

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