What cheek! My brother has not spoken to our mum for 15 years and he now wants a share of her estate. Estrangement and the law on family provision.

It is a cultural tradition that parents leave their assets to their children upon their passing. At the same time, there is a strong community expectation that parents should retain the right not to leave their assets to children who are estranged from them.

The law seeks to resolve these countervailing expectations in a fair and just manner in relation to claims made by children who were estranged from their deceased parent and have been left out of the will.

“Estrangement” describes the condition where two parties are no longer in a friendly or affectionate relationship as a result of the attitudes or conduct of one or both parties.

There is no rule of law that a child is not entitled to make a claim for provision if he, or she, has been estranged from the deceased parent. However, under Section 6(3) of the Family Provision Act 1972, the Court may refuse to make an order for provision out of a deceased estate in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

Hence, the question is whether the applicant’s character or conduct leading to and during the estrangement is such that it disentitles the applicant to the benefit of a court order for provision out of the estate. Each case must be assessed on its own facts with the primary consideration being the nature of the estrangement and the underlying reason for it. The following cases illustrate this principle: –

In Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of The Will of Frances Elizabeth Anne Cranston [No 2] [2019] WASC 410, the Supreme Court of Western Australia granted provision to the son although he had been estranged from his deceased mother for 13 years. Here, the estate was worth over $4 million, and the son was able to prove he had a need for provision. He was in debt and in a precarious financial position as he was not able to work due to a serious illness. The question was whether the son was responsible for the estrangement and whether his conduct disentitled him to the benefit of an order for provision. The Court found that the son did not act in a way that disentitled him to provision.  He was not solely responsible for the events that led to the initial rift with his mother as she had contributed to the estrangement when she was embroiled in family court proceedings with the son’s father and had kept a distance from him. The Court also found that the son was suffering from mental health issues brought about by a serious illness which impacted his judgment and ability to repair his relationship with his mother when she reached out to him and hence his moral responsibility for his conduct was reduced. The Court made an order for $1.6 million to be provided to the son out of the deceased estate.

On the other hand, in Burke v Burke [2014] NSWSC 1015, the Court of Appeal in New South Wales upheld the lower court’s judgement to refuse provision to a son who had been left out of the deceased parent’s will.  Here, the son of his own accord had been estranged from his mother for 12 years prior to her death and had failed to make any genuine attempts to reconcile with her. The lower court held that the deceased was entitled, notwithstanding the fact that the claimant was her son, to regard him as a person undeserving of any benefit from her estate. The lower court further found that it did not think that members of the community would regard such a view by the deceased as inappropriate even were the deceased to be aware that her son had fallen on hard times following the failure of his business. Accordingly, no provision out of the deceased estate was made to the son. The Court of Appeal affirmed the lower court’s decision finding that its decision was not out of kilter with community values and expectations as to amount to an error.

We can discern from the caselaw that in situations of estrangement, the main issues are the applicant’s role in the events leading to the estrangement and whether the applicant had made genuine attempts to repair the relationship. If the estrangement is entirely caused by the unreasonable conduct or attitudes of the will maker and sustained by the unreasonable conduct of the will maker, then the estrangement alone could not amount to disentitling conduct on the part of the applicant. However, in most cases, the events leading to the estrangement are more nuanced and each case must be assessed on its own facts.

If you require advice in relation to family provision claims involving estranged family members, please contact Robertson Hayles Lawyers at 9325 1700 or by email at enquries@robertsonhayles.com

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