Author: James d’Apice
When a parent dies leaving inadequate provision for an estranged child, the fact of estrangement alone does not defeat the child’s family provision claim. Indeed, if the estranged child demonstrates need, then that need may see the estranged child receive provision from their parent’s estate despite the estrangement.
The law in this area was recently considered by the New South Wales Court of Appeal in Burke v Burke  NSWCA 195.
The Court of Appeal upheld a decision by Justice Rein denying provision to an estranged child in circumstances the Court found would not offend community standards. This decision might offer some will-makers a reason to feel more confident about their wishes being upheld, though it is important to remember that each case is decided on its own unique facts.
A woman died leaving 3 children. Her husband had died in 1990. Shortly after her husband’s death, her eldest child announced his intention to separate from his wife, who was well-liked among the family, and remarry.
After making his announcement, the eldest child visited his mother at her local bowling club but left without speaking to her. The eldest child felt that he had been ignored by his mother; that she had snubbed him. The two never saw each other or spoke to each other again.
The eldest child and his brother spoke shortly after the bowling club incident. The brother encouraged the eldest child to apologise. The eldest child saw no reason to, and didn’t. (Though the eldest child tendered evidence that he went to some effort to discover what he had done to displease his mother.)
After many years of no contact, the eldest child made some calls to his mother’s nursing home enquiring after her health and asking that the nursing home staff pass on his best wishes. The eldest child did not speak to his mother, nor did he seek to. At around this time the eldest child spoke again with his brother, about their mother’s health and her assets. This was at a time when the eldest child was being chased by his creditors; and was ultimately made bankrupt.
The timing of the calls (ie after a lengthy period in which there had been no communication) was found to support an inference that the eldest child only phoned out of self-interest, not out of a desire for reconciliation and reconnection with his mother.
The deceased left her eldest child nothing in her will. She left a legacy of $100,000 to the son of her eldest child. She left the remainder of her estate, around $1.25m to be divided equally between her other 2 children.
The deceased explained in a letter written shortly before her death that she had made no provision for her eldest child because he had decided to cut himself off from his family. The deceased addressed the letter “to whom it may concern” and wrote that the eldest child had become “totally estranged from us all without any explanation” and:
“This estrangement has caused a great deal of pain and upset to the entire family and given the length of time since our last contact I decide to divide my estate to reflect the fact that [the eldest child] (through his own choosing) is no longer connected with my life. Because I have not left anything to [the eldest child], I wanted to bequeath a portion of my estate to his son… and the remainder to my son and daughter who have been a constant source of love and support…”
The eldest child commenced family provision proceedings. He had been discharged from bankruptcy by the time of the hearing but remained a person with substantial financial needs. His siblings’ financial circumstances, by contrast, were reasonably secure.
The primary judge dismissed the eldest son’s application and found that the deceased was entitled to disregard the eldest child in her will: Burke v Burke  NSWSC 1015. The primary judge also ordered the eldest child to pay the estate’s legal costs of the application.
The eldest child appealed.
The Court of Appeal dismissed the appeal, upholding the decision of the primary judge. The Court of Appeal found that there is no requirement that a will-maker must make provision for an adult child. The Court of Appeal also held that estrangement is not necessarily a decisive factor for or against a family provision claimant.
This decision requires us to reconsider an old rule of thumb: that being a child of the will-maker, combined with financial need and an estate of sufficient size, may be enough to secure victory in family provision proceedings.
On one view, the outcome of this case might be seen as surprising for the eldest child. He proved he (and also his wife) had substantial needs. He proved that he had a long standing relationship with his mother in the early part of his life. He proved that his estrangement was not characterised by cruelty or malice. The estate was of moderate size. His siblings’ financial circumstances were reasonably secure.
A number of factors might explain this outcome.
Firstly, the estrangement was not caused (or at least not solely caused) by the deceased. It is unlikely that a court would find a mother casting out and disinheriting a child consistent with community standards, unless the child had played at least some role in the breakdown of the relationship.
Secondly, the court found (though the eldest child made some attempt to argue the point by suggesting his telephone calls to the nursing home could be viewed as attempts at reconciliation) that the eldest child had made no genuine attempt at reconciliation. Had the eldest made an attempt (or a more earnest attempt) at reconciliation the court might have viewed his application more favourably.
Thirdly, the deceased left a letter setting out her intentions. In practice solicitors see many letters of this sort. This type of letter is not determinative because the Court will consider all the circumstances of the case. However, as was the case here, letters of this sort can prove useful to an executor trying to uphold a will-maker’s wishes.
An important lesson to take from these proceedings is that the Court considers a wide variety of criteria when reaching its decision. A number of factors suggested the eldest child might receive at least some modest provision from his mother’s estate.
Your Family Situation and Your Will
When you instruct a solicitor to assist with your estate planning or advise you on your will, he or she might ask you about your family relationships.
Care must be taken when providing instructions. If your family is affected by estrangement and you intend to exclude your estranged child from your will, you should consider whether that child will bring proceedings against your estate and cause problems for your executors. If so, you ought to consider leaving behind a letter explaining your decision.