There's a mistaken belief that Wills can easily be challenged if a spouse, child or dependant are not satisfied with what they've been left. (That is, by filing a family provision application.)
It's not correct. Only persons with a valid legal basis for making a claim will succeed in challenging a Will (or negotiating a satisfactory out of court settlement). It has nothing to do with 'the principle' of the matter.
What is estrangement? How does it affect a challenge to a Will?
Some might find it surprising to hear that a child who has not had any relationship with a parent for extended periods (that is, they're 'estranged') can still be successful in challenging a Will. It depends on the reason for the estrangement (amongst many other things).
Many instances of estrangement between a parent and child are caused by traumatic events from decades earlier (such as from abuse, torment and/or neglect).
Often, when it comes time to consider a Will challenge, the child might be the black sheep of the family in their 40s, 50s or 60s with little to show for and perhaps even a criminal record.
How do the Courts treat estrangement?
The Courts are mindful in any Will challenge of how certain events of the past can affect a relationship between a child and parent. Traumatic events can tear relationships apart, lead to poor decision-making and sometimes even lead to psychological disorders and/or addictions.
In cases where there is a serious and substantial breach of parental duty towards an applicant, it will often lessen the impact of any improper conduct by the applicant towards the deceased.
In any Will challenge, the Court considers what provision a 'wise and just testator' would have thought was their moral duty to provide to the child, having regard to community standards.
What should I do?
Irrespective of whether we're acting for claimants or executors, ascertaining early on whether a valid claim exists is vital. It allows us to not only advise as to the claimant's prospects of success but also advise what can be done to minimise risk and costs.
It's important to note that strict time limits apply to challenging a Will.
Often, persons with a valid legal basis to challenge a Will do not have the financial means to fund an action. For those individuals, we can offer to defer payment of our fees.
Re Monument; Monument v Monument [2022] VSC 205
An example is a recent Victorian case of Re Monument; Monument v Monument [2022] VSC 205. In that case, a daughter challenged her late mother's Will. Based on the Will, the daughter was not entitled to receive what was in the estate.
In that case, the daughter had endured a turbulent and tumultuous upbringing. The deceased had been an alcoholic and subjected the daughter to conflict, verbal and physical abuse, ridicule and neglect throughout her childhood years. The daughter left home at 17.
The Court held that the daughter was not estranged from the mother in this particular case. Instead it found that there were periods of temporary separation and that the daughter's relationship with the mother endured up to the last year or so of her life at least. Even if the daughter and deceased were estranged, the Court also noted that it was temporary and did not weaken the daughter's moral claim. The Court noted that any periods of separation and lack of contact must be viewed in the context of the deceased's abject failure in her parental duty and the fact that Robyn was a victim of this abuse who suffered the direct effects of the deceased's moral failings.
The Court ordered that the daughter receive ½ of the net proceeds of the estate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
