Can an Estranged Family Member Contest a Will?

Will disputes can be a trying time for those closest to the deceased, with prior family relationships and dynamics often being brought into question. It’s not uncommon for a testator to become estranged from certain relatives in the months or years leading up to their passing and, in many cases, tensions are left unresolved.

Even if an individual has physically and/or emotionally distanced themselves from the deceased over an extended period of time, they may still be eligible to pursue a claim against their estate. Estrangement in of itself doesn’t completely dismiss the testator’s legal obligation to provide for family members, especially children.

However, cases of this nature can be challenging, not only in terms of the claimant reaching a favourable outcome.

Typically, when an estranged individual makes a claim against an estate, they’re required to delve into any details of their relationship with the deceased that the Court deems relevant. Many find resurfacing past strains unsettling, but such information is crucial in reaching a final verdict. If the claimant fails to evidence why the testator has an obligation and duty to provide for them, regardless of their estrangement, their case will likely be unsuccessful.

That being said, there have been many instances where an estranged individual’s claim against an estate has been deemed valid and, consequently, they have received greater provision. It’s important to keep in mind that, ultimately, the Court is seeking to achieve a fair and equitable solution for those involved.

When an Estranged Family Member Contests a Will

When working towards a final ruling, the Court considers and assesses the unique circumstances of each individual case. During this process, various relevant factors will be taken into account, including:

• Whether the testator had a ‘moral duty’ to provide for the applicant;
• If the deceased failed to provide the claimant with ‘adequate provision for proper maintenance and support’;
• How long the testator and applicant have been estranged for;
• The conduct of both parties in coining and maintaining their estrangement;
• The applicant’s financial circumstances, for instance, if they have an immediate need for support;
• The size of the deceased’s estate;
• Whether either party attempted to make amends and, if so, which individual this was.

While a testator can provide an explanation as to why they excluded an eligible person from their will, this will not necessarily prevent the individual from making a claim. However, such reasoning can give the deceased the opportunity to share their stance on the estrangement, providing the Court with valuable insights into why exactly they made certain decisions.

That being said, if an individual wants to include a clause of this nature in their final will and testament, it’s highly recommended that they speak with an estate professional. This is because, if such explanation isn’t carefully worded, the testator may unintentionally acknowledge that they have a moral duty to provide for the potential claimant of which, by choice, they’re not fulfilling.

Case Study: Dolman v Palmer

Dolman v Palmer saw the deceased’s estranged daughter by his first marriage pursue a family provision claim against his $4 million estate.

The plaintiff’s father stipulated in his will that the majority of his estate was to be distributed between his son and various other family members. However, his daughter was excluded from mention.

When the plaintiff was 13 years old, 20 years prior to her claim against his estate, the deceased and her mother separated. At this time, the testator’s daughter continued residing with her mother, all the while distancing herself from her father.

The deceased maintained contact with his daughter, sending her cards for her birthday and other occasions. However, after a number of years, the plaintiff requested that he stop, sending him an “angry” letter to which he responded in great detail and left the option for further contact open.

While the plaintiff continued to visit her father’s neighbour, she remained estranged from the deceased almost entirely up until his passing. After learning that her father had two weeks to live, the plaintiff didn’t plan on visiting the deceased but, subsequently, relented and ended up seeing him on one occasion.

Up until the time of his passing, the plaintiff maintained her rejection of her father, which was an intentional decision. While the deceased’s daughter didn’t own any significant assets, she was well equipped to support and provide for herself. Thus, after the Court took all relevant factors into account, the plaintiff’s claim was deemed unsuccessful.

For more information, or to speak with an experienced estate lawyer about contesting a will, get in touch with our team at Hentys Lawyers today.