Family relationships and dynamics are as complex as the people that inhabit them, and the Court has often had to toe the line between respecting these dynamics and attempting to create a fair and equitable solution to any problems that arise out of them. In attempting to create some sort of a reasonable ‘guide’ for these situations, the Courts have often chosen to respect the written terms of a Will unless the circumstances are so unfair as to warrant changing them.
The result of this is a general understanding that estrangement, and subsequently cutting a close family member out of a will, will be upheld by Courts unless it can be demonstrated that it is unfair to do so. How exactly ‘unfairness’ is determined varies from State to Territory, and this variation can produce some fairly interesting results.
Making a Family Provision Application as an Estranged Child
Family Provision applications are the primary method of overcoming ‘unfair’ Wills where a child or close family member has been completely cut out of a Will. Although it’s exact meaning differs across Australia, it is generally understood to allow for a variation to the terms of a Will to reflect the deceased’s obligation to support and maintain that person – provided that such an obligation existed in the first place.
In Queensland, determining whether this obligation is at all affected by estrangement is fairly straight forward – it doesn’t. A child may make an application for Family Provision regardless of the extent and duration of their estrangement. Despite differences in opinion in other Australian jurisdictions, the growing consensus appears to be that estrangement in and of itself does not terminate an obligation of a deceased to provide for an estranged child .
What Effects a Court’s Decision with Estrangement?
The rule of thumb for estrangement, as far as one can make with the Courts, is that the Court will take into consideration whether or not the estrangement was caused by the child, and whether there have been any attempts at reconciliation.
We can see this consideration at work in the relatively recent case of O’Donnell v Gillespie , in which a child had become estranged from his father after leaving the family farm. The child had no communication with his father right up until his father’s death, and his father had completely disinherited the child. The Court considered the fairness of such an estrangement, and came to the conclusion that it would not be reasonable to disinherit a child solely because of their leaving the family farm – as a result, the Court ordered the child receive 5.38% of the overall Estate.
The outcome of this case highlights the emphasis on ‘fairness’ in relation to estrangement, as well as highlighting the fact that estrangement does not mean that a person is necessarily disinherited completely.Foley v Ellis NSWCA 288, per Sackville JA.   QSC 22.