Almost everyone knows a family with an estranged child whose family has not seen or heard from them in the past few years. What would you do in a situation where your estranged child suddenly rocked up to the family Christmas party, uninvited, asking questions about your Will, or which family member would get certain assets upon your passing?
If you’re experiencing a similar scenario or are concerned that this may happen to you in the near future, do not fret! Continue reading for more information on how other estranged children have tried to challenge a Will, and what you need to know to prevent this from happening to your own estate.
Estrangement
Estrangement occurs when a relationship between two individuals, generally that of a parent and child, is broken down, causing a rift that may reduce a person’s capacity to receive benefits under their parent’s Will. This involves one or both parties moving away and/or severing any ties of communication for long periods of time.
Despite this relationship breakdown, estranged children are entitled to make a Family Provision Claim in the Supreme Court of New South Wales over their parent’s estate as they are considered “eligible persons” under section 57 of the Succession Act 2006 (NSW). The person making the family provision claim is known as the “Applicant”, “plaintiff” or “claimant”, as they are the one applying to commence the action and seeking a claim.
Proper maintenance, education, or advancement in life
Next, the Court must be satisfied that the Family Provision Claim is “for the proper maintenance, education or advancement in life” of the claimant (section 59). This is where most estate planning matters involving estranged children fail.
The definition of key terms used by the Court is found in the common law case of Devereaux-Warned v Hall (No 3) [2007] WASCA 235, specifically that:
- ‘Adequate’ is concerned with the quantum; and
- ‘Proper’ is concerned with the standard, of maintenance, education, and advancement in life of an applicant for relief.
What ‘adequate’ and ‘proper’ is will depend on the particular circumstances of the case. The concepts are relative to the circumstances and are not governed by an abstract absolute: Pontifical Society for Propagation of the Faith v Scales [1962] HCA 19.
Broken down, these terms are:
Maintenance – where the needs of the Applicant cannot be met with their own resources, or what they are already entitled to under the Will. This includes:
- Mortgage repayments; and
- Household bills; and
- Medical bills; and
- Older age-related expenses; and
- Supporting any dependents, such as children.
Education – where the funds may be used to fund the Applicant’s school and further education needs. This may also encompass ‘advancement’ in terms of costs for up-skilling, such as TAFE courses.
Advancement – where a lump sum payment to the Applicant can be used to further their goals or upskill them in any way. The funds may be put towards:
- Training and gaining qualifications; or
- Contributing capital to set up a business
The Court’s considerations
Moreover, the Court may also consider a myriad of factors, as laid out in section 60.
These include:
- The deceased’s obligations to the child; and/or
- The deceased’s financial circumstances; and/or
- Whether the child is being supported by another person; and/or
- Whether the child has any disabilities that include, but aren’t limited to, physical, mental or intellectual; and/or
- Where the Estate is located and what its value is; and/or
- How old the parties are; and/or
- Any contributions that the child made to increase the value of the Estate; and/or
- The child’s current state of finances; and/or
- The child’s relationship with the deceased; and/or
- Whether the deceased was an Aboriginal or Torres Strait Islander; and/or
- Whether there are other existing claims with the Estate; and/or
- Whether there are other matters or concerns that the Court may consider relevant to the case.
Perhaps the most important factor that the Court will consider in cases of estranged family members is the relationship between the claimant and the deceased.
How to structure your Will to best exclude an estranged child
If a parent wishes to leave their estranged child out of their Will or to reduce the share they may receive, they must provide a written statement on a separate document, often a Statutory Declaration, explaining why they have done so. It is not recommended that these reasons be included within a Will.
Examples include:
“I DECLARE that my husband BARNETT LARKIN who deserted me and his family and brutally ill-treated me should not benefit in my will in any way whatsoever.
I FURTHER DECLARE that my son JULIAN DEE LARKIN who has failed to stand by me should not benefit in my will in any way whatsoever. HOWEVER his brothers might assist him depending on their own financial circumstances.”
“I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time.”
Recent NSW Case Studies
The cases below demonstrate that there are arguably little to no circumstances in which a Court will provide estranged children with benefits under the Will.
Case study 1 – Larkin v Leech-Larkin [2017] NSWCA 1418
This recent Supreme Court of NSW case concerns a Family Provision Claim from Mr Larkin (“the plaintiff”), after his mother, to whom he was estranged from for over 40 years, left her estate entirely to her second-eldest son, Mr Leech-Larkin (“the defendant”).
Facts:
The plaintiff had a strained relationship with his mother. He made little to no attempts to contact her in the last forty (40) years of her life and maintained a close relationship with his father following the parents’ divorce, which was much to the mother’s disapproval.
Meanwhile, the defendant maintained a much closer relationship with his mother – the two had many similar interests and even owned a shared property together in the Blue Mountains, which he had significantly contributed to.
Moreover, the mother had a history of rewriting her Wills. In 2003, she had left a small bequest of $5,000 to the plaintiff and his two younger siblings and left the rest and residue to the defendant. In March 2013, she rewrote her Will again, leaving the rest and residue of her estate to the defendant. This was valued at a net worth of $680,000.00 (including the cost of proceedings).
Of note, the plaintiff and defendant were dealing with a sexual abuse claim against the school they attended as children at the time of proceedings, which added great strain to the already tense family relationship.
Held:
Justice Parker rejected the plaintiff’s claim and ordered that the entire estate be given to the defendant. To determine this, the Court considered the significant extent of the plaintiff’s estrangement with his mother and how he had made no attempts whatsoever to contact her in the final eight (8) years of her life.
While the Court was not prevented from making a claim in the plaintiff’s favour simply because he was an independent child, the Court emphasised that its attention should be on his ‘advancement’ rather than his ‘maintenance’ or ‘education’, stating that:
“the deceased had no obligation to maintain or educate him and the question is whether, having regard to all relevant factors, the deceased owned an obligation to provide in some way for him by way of advancement against his old age.”
This was because the plaintiff, Mr Larkin, was now a mature adult who had lived his whole adult life independently of the deceased.
At Court, the mother’s lawyer also introduced evidence of letters in response to the question that one of her sons may make a claim for provision, to which she responded:
“[T]hey would not dare make a claim against my estate, they know what Lucien has done for me and that he is entitled to everything that I leave. Julian in particular has done absolutely nothing for me over the last 20 years. Lucien knows that I have left the property to him and he trusts me implicitly.”
Ultimately, the Court dismissed the Application, finding that the mother had no obligation to provide an advancement for her children to safeguard assets so that such advancement can be provided by will. It also found that it did not have the power to make provisions under the Succession Act to heal wounded feelings or indignation caused by the mother’s behaviour during her lifetime. It was now up to the defendant to decide whether he would like to pass on any remaining family assets to the plaintiff and his children.
Case study 2 – Re Filomena Rodi, deceased [2016] NSWSC 1696 (1 December 2016)
This recent case study demonstrates the unlikelihood of succeeding with a Family Provision Claim when an estranged family member does not hold a close family relationship with the deceased and is already living a modest lifestyle.
Facts:
Ms Filomena Rodi (“the deceased”) died in 2015, leaving her estate behind to her four children (two boys and two girls) in equal shares. The Lidcombe property that she lived in prior to her death needed to be sold in the ordinary course of administration of the estate.
There were two Applicants to make a Family Provision Claim over the Property: an estranged, adult daughter (“the first plaintiff”), and an adult grandson (“the second plaintiff”). Each filed a separate summons within the limitation period stipulated under section 58(2), which expired 12 months after the date of the deceased’s death. With consent from both parties, these summonses were dealt together in the same case by the Supreme Court. A determination of the first plaintiff’s claim is set out below:
Held:
Maria Rodi’s Family Provision Claim over her mother’s Property is rooted in resentment for being revoked from an earlier Will in 2008 and, after having fallen out with her family, becoming estranged ever since.
Justice Lindsay of the Supreme Court of New South Wales considered these main factors when determining the validity of her Application:
- Her eligibility under section 57 of the Succession Act 2006; and
- Whether it would be for the “adequate provision of her proper maintenance, education or advancement in life” under section 59
As the daughter of the deceased, the first plaintiff clearly satisfied the first factor.
However, the Court found that the second factor was not satisfied as she lived a modest life, was in good-health and had no moral claim to the boundary of the deceased, which was superior to those of her siblings. Specifically, the first plaintiff lived in a modern five-bedroom house valued at $2 million, subject to a mortgage of less than $100,000. All her adult children had already left the property, hence reducing any outgoing costs. Moreover, her husband also owned a quarter share in an investment property, which might yield to him a sum of over $250,000. Overall, the first plaintiff estimated the value of her own assets (including superannuation) at $972,686.50, and with her husband’s at $1,446,889.50, hence demonstrating that there was no real justification to award her with one half share of her mother’s estate.
With all things considered, the first plaintiff’s Application was rejected, and the Court ordered that she pay or bear her own costs of the proceedings.
Case study 3 – Burke v Burke [2015] NSWCA 195
This case concerned a Family Provision Claim from estranged child Mr Keep (“the plaintiff”) against the estate of his mother, Ms Burke (“the deceased”) after 16 years of estrangement.
Facts:
The deceased had three children of similar age. In her final Will, she left nothing to the plaintiff, $100,000.00 to her grandson, and the remainder of her assets was to be divided among her remaining children.
By way of letter dated 5 August 2010, the deceased explained that she did not want the plaintiff to receive any monies as he had actively chosen to estrange himself from herself and the family. The plaintiff had no contact with the deceased between 1993 and 2009. The letter also noted that the plaintiff had failed to invite her to his second wedding, and that he had not attended the funeral of his son, arising from his first marriage, instead electing to send flowers in his stead.
In June 2013, the plaintiff commenced proceedings seeking a Family Provision Claim, initially seeking an amount of $400,000 out of the estate, before reducing it to $300,000 by the time of the hearing. He did not refute the finding that he was struggling financially, specifically as he had no superannuation, and that he and his wife had faced bankruptcy due to the failure of the bed-and-breakfast business they ran.
Held:
The appeal to the Supreme Court was ultimately dismissed by Justice Ward, with Justices Meagher and Emmett agreeing. The plaintiff wanted nothing to do with his family and had created a new life without them as a part of it, affording greater weight to the belief that he should not be entitled to the estate.
Moreover, the Court gave little weight to an incident that occurred at Ashfield Bowling Club at an earlier date, in which the plaintiff claimed that the deceased had snubbed him when they coincidentally saw each other, given that the son had already withdrawn himself from the family prior to the incident.
Ultimately, the Court concluded by saying that:
“…the deceased was entitled, notwithstanding that the plaintiff was her son, to regard him as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of this application… I do not think that members of the community would regard such a view by the deceased as not right or as inappropriate even were the deceased to be made aware that her son had fallen on hard times following the failure of his business. Accordingly, notwithstanding the poor financial circumstances and taking all matters favourable to him into account including the size of the estate I think no provision ought to be made out of the estate for him.”
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