All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will, or a proposed distribution of an intestate estate, on the basis that they have not been left adequate provision by the testator.
An eligible person generally includes a spouse or de facto partner of the deceased person or a child of the deceased and, in some circumstances, a former spouse, or somebody who was dependant on the deceased.
If a family provision claim is successful, the Court can order an adjustment to the terms of the Will to satisfy the claim.
Estrangement or a falling out between a Will-maker and a family member is a common reason for being left out of a Will. Estrangement may present an obstacle for an eligible person making a family provision claim, however will not necessarily prevent a successful claim.
What must an applicant prove in a family provision claim?
An applicant must prove that, at the time of considering the application, he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life.
The factors the Court considers include:
- the degree to which the deceased had a moral obligation to provide for the applicant in light of the proposed distribution, if any, and the value of the estate;
- the applicant’s financial position including his or her needs, resources and earning capacity, compared with the competing financial needs of other beneficiaries or entitled persons;
- the contents of the Will and any evidence regarding the deceased’s obligations and intentions with respect to the applicant;
- the applicant’s character and conduct and the nature and length of his or her relationship with the deceased;
- the relationship between the deceased and other beneficiaries or entitled persons;
- the applicant’s age and whether he or she has a physical or mental disability;
- whether the applicant made financial or non-financial contributions to the deceased’s property or to the welfare of the deceased person or his or her family.
The effect of estrangement on a family provision claim
When a claim involves issues of estrangement, the Court will pay close attention to its cause, in addition to the above factors.
Many circumstances may lead to estrangement such as the disapproval by a parent of a child’s conduct or life choices, personality clashes or misunderstandings. Alternatively, as some cases illustrate, estrangement may be inexplicable or simply arise from a lack of contact or rapport between the parties.
The Court must consider the circumstances and needs of the applicant rather than his or her purported ‘right’ to inherit. Many testators include statements in Wills or letters explaining their reasons for disinheriting an eligible person. Such disentitling statements are admissible but will not necessarily prevent a claim being successful.
The following case extracts help to explain how the Court deals with issues involving estrangement.
In Andrew v Andrew  NSWSC 115 the Court defined estrangement and reiterated the need to deal with all of the circumstances of the case.
[T]he word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the moral claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case…’
Andrew v Andrew  NSWCA 308 involved an appeal from the unsuccessful applicant in the case above.
The deceased mother and daughter had been estranged for 35 years. On the evidence, the Court was unable to determine the direct cause for the estrangement which was not hostile nor abusive. The applicant conceded that her sexual status and having a child out of wedlock may have been met with disapproval by the mother however this was never raised by her.
The daughter was left a legacy of $10,000 from her mother’s estate valued at $800,000. A further $50,000 was awarded on appeal with the Court determining that the daughter would require financial assistance in raising her child and that the further provision awarded would not cause detriment to other beneficiaries.
Attempts at reconciliation
In Jodell v Woods  NSWSC 143 the applicant had attempted to make amends and reconcile differences with her mother, the testator. Evidence was provided showing letters written over the course of several years.
The attempts by the applicant to reconcile with her mother, who had completely omitted her from the Will, the size of the estate (over $2 million) and the financial needs of the applicant (whose main source of income was from the aged pension) were contributing factors in awarding her provision of $425,000.
Estrangement wholly or partly the fault of the deceased
In Poletti v Jones  NSWSC 715 two daughters who had been left out of a Will claimed against the estate of their father, worth $3.2 million.
In a statement held with his Will the testator declared the reason for omitting the daughters, namely that he had no contact with them for the past 20 years, initiated by family law proceedings in which he implied they had sided with the wife. He also indicated that he had over the years (through his business) assisted the daughters’ respective husbands.
Although communication had ceased between the father and daughters after the family law proceedings, the Court did not consider this a conscious decision of the daughters, rather a stepping-back from the present conflict. Over time, the situation became the status quo and neither the father nor the daughters attempted to reconcile.
The relationship between the daughters and defendant (a brother, who was the main beneficiary), was also hostile which exacerbated the tension between the father and daughters. The brother had significant control over the deceased and had, according to the Court, ‘launched legal proceedings [against the applicants] which were calculated to and had the effect of alienating the [daughters] further’.
The Court considered that the conduct of the deceased and the main beneficiary had significant impact upon the estrangement and that any attempts to repair the hostile relations would have been perceived by the daughters as fruitless.
The applicants were successful in the original proceedings and awarded provision of $450,000 which was, on appeal, reduced to $390,000 each.
The above cases illustrate the approach taken to certain aspects of estrangement. It is important to understand however that the Court’s final decision will turn on the entire circumstances of each individual case.
Estrangement is not a barrier to a successful claim however it is important to obtain clear legal advice before pursuing a claim.
Sound advice is also essential when planning your Will to alleviate a potential family provision claim by an estranged family member.