Often we are contacted after the death of a parent to see whether they should make a claim against their parent's estate. They may be unhappy with the size of the provision for them, or may have been excluded completely. Equally we have faced questions from parents who want to leave a child out of their will. This may be for "bad behaviour" or estrangement.
Waine v Tigg is a recent High Court case that is a good example of both the obligation to recognise children, and the effects of estrangement on any entitlement.
Briefly, the deceased, Mr Parker, had died leaving his entire estate of approximately $643,000 to his two nephews. He had previously been married in England, but left his wife and children aged 4 and 8 in 1968, and England in 1969. He did not have contact with the children for 45 years. He did not provide funds to their mother, either spousal maintenance or child support. Their mother was totally reliant on benefits and family assistance from the point of separation.
From the 1990's the children tried to find their father. He was finally located but declined contact, he then changed his mind and there was some exchange of letters in 2014, although the Court found these showed a lack of interest on his part. The daughter finally found he had died after an internet search when she had not heard from him.
The Family Court had found that a "wise and just testator" in Mr Parker's position would have made provision for the children. He had been solely responsible for the estrangement, had not supported them financially or emotionally since they were young and they had suffered as a result. He had breached his moral duty in not providing for them.
After considering the relative positions of both he awarded the daughter $100,000 and the son $175,000. The balance of the estate of $368,000 was to go to the nephews equally. They appealed the size of the awards. They believed that the proper award to the children would be 8-10% of the estate so $64,300.
The nephews were not successful in their appeal and costs were awarded against them as a result.
There are various comments through the Judgement, and the lower Court Judgment about the father's obligations. For instance the fact he could not know of his son's financial position or health, so therefore could not make a decision about his need was dismissed. His ignorance was said to be "a matter for which he alone was responsible"
There are comments about the daughter's award being appropriate "to recognise her unvalued role as a child of the testator and because of the lack of parental support provided to her during the testator's lifetime".
The lesson here is that if you are looking to omit a person from your estate that you owe a legal obligation to you are potentially opening a can of worms for those left behind to deal with. You might hope your death will go unnoticed so that any claim would be avoided. These days with the internet everything is potentially public knowledge. The children were residing in England but managed to find out about the death and still bring a claim.
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.