What is Estrangement?
When an applicant disputes a Will, the relationship between the claimant and the deceased in the years prior to the deceased’s passing is one of the first facts the Courts considers in deciding what or if any provision should be made.
If, prior to the deceased’s passing there was a physical and/or emotional distancing between the applicant and the deceased, with no reconciliation before death, then in legal circles this is known as estrangement.
Estrangement makes a disputer’s claim considerably more difficult to be successful as the notion is ‘why should the deceased provide, when they have had no contact and it is their wish not to do so’?
First, any eligible person as defined for Victoria in s 90 of the Administration and Probate Act 1958 has the right to dispute a Will through a Family Provision claim. Second, duties and obligations to loved ones, especially children do not disappear just because one has been estranged.
Estrangement Does Not Automatically Terminate The Success Of An Estate Dispute
When assessing the most common form of estrangement – between parents and their children, the growing consensus in Australia appears to be that estrangement in and of itself does not terminate an obligation of a deceased to provide.
This is because the courts look to all the facts to determine whether the excluded person and the deceased were actually estranged, the length of estrangement, the conduct of both the parties in creating and perpetuating the estrangement, financial circumstances, the size of the estate and whether there have been any attempts at reconciliation and if so, by who.
The concept of estrangement alone is not enough. Instead, the courts expect a relatively high standard of forgiveness of the deceased testator, regardless of the length of estrangement or reasoning for such distancing.
The case of Andrew v Andrew demonstrates these considerations and shows how a substantial length of estrangement and the fact that the applicant was the cause of the estrangement are together not enough to block a claim.
Here, the deceased was survived by five children, with an estate valued at $800,000. The deceased and her eldest daughter had spent more than 35 years estranged. There was no actual falling out, but the daughter had no rapport with her parents which perplexed the deceased as evidence put forth stated that the mother ‘could not understand why the daughter would not talk to her or her husband and this caused great pain for the pair’.
As a result, the deceased left a $10,000 legacy to the eldest daughter and the remainder of the estate to the remaining four siblings of whom she had a very good relationship with.
The eldest daughter made an application to the Court claiming that her mother had made inadequate provision for her in the Will. The court at first instance refused her application on the basis of the length of the estrangement and the fact that the mother had not engaged in any unreasonable conduct which caused the estrangement.
However, on appeal it was found that although the mother’s reaction was understandable, it was not persuaded that such a reaction justified the reduction of the daughter’s share to a largely nominal sum, as the deceased still has a duty of care to provide. As a result, the Court ordered that the daughter was to receive an additional $50,000 from her mother’s estate – a demonstration of how estrangement alone is never enough!
So in light of the above, if you think you have been inadequately provided for but are concerned about an element of estrangement, give the team at Hentys Lawyers a call today, and we can help you with your Estate and Will Disputes.
 Foley v Ellis  NSWCA 288.
 Andrew v Andrew  NSWCA 308