It is not uncommon for a parent who has fallen out from one of their children to give them nothing in their will. It is wise for parents in this situation to leave a written statement, kept together with their will, explaining the reasons why no provision has been made.

Even if there is no provision in the will, and the written explanation explains the reasons, it is still possible in NSW for an estranged child to make a challenge to their parent’s will. This challenge can seek an order from the Court for provision to be made for them.

This right is provided for under the Succession Act 2006. The Supreme Court of NSW has the power to change a deceased person’s will in certain circumstances. A child can make a claim where adequate provision for their proper maintenance, education or advancement in life has not been made by the will of the deceased.

The Courts have held that estrangement alone is not a determinative factor against the making of an order for provision in favour of a child from their estranged parent’s estate. It is a factor to be taken into account, but is not determinative.

The Supreme Court of NSW deals with adult child estrangement cases in estate disputes on a regular basis. There is no hard and fast rule as to how these claims will be determined – the outcome will depend on the unique facts of each particular case.

However, there are a number of factors that the Court will take into consideration which are likely to have a bearing on whether or not an estranged adult child will be successful in their claim, including:

  1. Which party was the instigator of the estrangement;
  2. The circumstances of the estrangement, including whether it is the product of callousness or hostility;
  3. The conduct of both parties in perpetuating the estrangement;
  4. Whether there has been any attempt at reconciliation, and if so, by whom; and
  5. The length of the estrangement

Whilst the cases show that the Courts expect a relatively high standard of forgiveness of a deceased parent in favour of an estranged child, this is not always the case.

For example, in the 2020 case of Behrens v Behrens, an estranged adult son was unsuccessful in his claim for provision from the estate of his late mother. In that case there had been a very long (25 year) estrangement between the mother and son, together with a history of violence by the son towards family members. In those circumstances, the Court held that the deceased was under no obligation to provide for her son, who was also ordered to pay the legal costs of the estate as a result of his unsuccessful claim.

Fox & Staniland Lawyers have a team of lawyers who have extensive experience in preparing wills for clients which have withstood claims of invalidity and acting for executors of estates and claimants in all aspects of estate litigation.

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