Can an estranged child challenge a Will?

It is, unfortunately, not uncommon for parents and their children to experience a breakdown in their relationships, often resulting in a parent removing a child as a beneficiary from their will.

Whilst courts are reluctant to depart from a testator’s wishes, section 91 of the Administration and Probate Act 1958 (Vic) allows for provision to be made for ‘eligible persons’- including children. Section 91A enumerates factors to be considered in making a family provision order and includes the nature of the relationship between the deceased and the applicant, among other considerations.

Can an estranged child see the Will?

The first issue that often arises in circumstances of estrangement is gaining access to a will. Section 50 (e) of the Wills Act 19997 allows a child to inspect and make copies of their parents will, regardless of whether they are named as a beneficiary or not. Given the 6-month time limit on pursuing a claim for further provision, it is critical for potential applicants to understand their position as soon as possible.

Estrangement and challenging a Will

When the child is at fault:

In the case of Hansen v Hennessey [2014] VSC 20, a mother had failed to provide in her will for three of her adult children, having passed away 6 months after a cancer diagnosis. The two daughters challenged the Will, but their claim for further provision was rejected. The court referenced their refusal to respond to their mother’s attempts at contact despite knowledge of her terminal illness and their would-be limited opportunity for reconciliation in their determination that the deceased had no responsibility to provide for them more than she had.

The son, however, was deemed by the court to not have expressly rejected his mother in this same way. Although their relationship had broken down, the court distinguished his estrangement from that of his two sisters as he did not explicitly refuse contact with his mother in the same manner. The court also viewed him to be in a ‘different position’ due to ill-health and poor financial status. It was therefore held that what she had provided for him under the will was insufficient and he was awarded a more appropriate amount.

The court in Wheatley v Wheatley [2006] NSWCA 262 further found that the circumstances of the applicant and other beneficiaries was to be considered. In this instance, it was held that the amount sought by the applicant would not produce hardship for the only other beneficiary given the size of the estate.

When the parent is at fault:

What, then, is to be made of circumstances in which the deceased is responsible for the breakdown of the relationship?

Such a scenario is explored in the case of Keep v Bourke [2012] NSWCA 64. A daughter who was expelled from her family after marrying was not excluded from challenging the Will despite being estranged for over 30 years. The court held that the mother ‘must be seen as the instigator of the separation’ and whist neither party made an attempt at reconciliation, the daughter could not be barred from making a claim as there was no withholding of affection from her.

In Poletti v Jones [2014] NSWSC 71, two daughters that had been left out of the will of their father claimed against his estate. This was because he had no contact with them for over 20 years following a separate family law dispute. Despite this, the court found they still would be eligible for further provision as the estrangement was not a ‘conscious decision’ of the daughters, but rather represented them avoiding conflict with their father.

In Walker v Walker [1996] NSWSC, Young J elicited the importance of looking to all facts and circumstances of testator family maintenance claims in determining whether it would have been morally correct for a testator to have provided for an applicant. What an analysis of the above cases demonstrates is that there is indeed no hard and fast rule that is applied to cases of estrangement, and in fact there remains scope for provision depending upon the circumstances of the deceased, applicant, and their relationship. What is evident from cases involving a relationship breakdown is that a multitude of factors are to be assessed, and it is important to seek legal advice as early as possible.

Speak with an estate lawyer about challenging a Will

If you or someone you may know has been left out of a will or believes that you have received less than what you are entitled and find yourself in a Will Dispute please do not hesitate to contact the team at Hentys Lawyers today.

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