Contesting a Will: The Effect of Estrangement
In Queensland it is possible to contest a Will if you are a person with standing to bring a Family Provision Application and the inheritance you have received is inadequate for your proper maintenance and support.
To have standing to bring a Family Provision Application, you must be a ‘Spouse’, ‘Child’ or ‘Dependent’ of the deceased. These are legal technical definitions under the legislation.
Could you be entitled to further and better provision from an Estate? – Contact our office for more information.
The Court will look at a range of factors in determining whether further and better provision ought to be made for any applicant and although an applicant may have standing and may meet the criteria for further and better provision from the Estate, the conduct of the applicant and the totality of their relationship with the deceased will also be considered. Estrangement may be considered disentitling conduct that reduces an award that may be made in favour of an applicant and in some circumstances may disentitle them entirely. This article will focus on claims by adult children.
Not all Children are Considered Equal
While the Court does have the power to alter the Will of a deceased so far as is necessary to provide further and better provision for applicant, it does not do so lightly and will not simply alter a Will in accordance with its own notions of fairness and justice.
Where community standards dictate that a testator ought to have made provision for a person, for example where a child falls on hard times, then the community general expects a parent to make provision for their child where they would otherwise be left destitute. Parents are not expected to look after their children for the rest of their lives, but where there are special circumstances in which a child is unable to support themselves due to poor health or financial hardship, and the Estate has funds available, then parents are generally thought to have moral obligation to provide for that child.
This does not however mean that all children will be treated equally and in circumstances where one child has shown a level of devotion and care to the testator over a long period and other children have had minimal or no contact with testator over a long period of time, this lack of contact or estrangement will be considered by the Court and may reduce an entitlement of an applicant or potential beneficiary even in circumstances whether the applicant can otherwise demonstrate a need for further and better provision from the Estate. In some circumstances, estrangement may disentitle an applicant entirely. The onus of proving estrangement as disentitling conduct rests on the party opposing the application and the Court’s decision will ultimately depend on the level of evidence that can be produced by either party. Whether an applicant’s claim on an Estate is reduced or entirely extinguished depends on all the circumstances of the case.
The Court’s Interpretation of Estrangement
Estrangement describes a condition that results from the attitudes or conduct of one or both of the applicant and the deceased and the totality of their relationship will be considered by the Court. In circumstances where a child has treated their parent with callousness or hostility, the Court may accept that the deceased was entitled to make no or limited provision for that child in these circumstances. Estrangement may not only result where there is callousness or hostility, but also in circumstances where there is emotional distancing that occurs between two family members. Where the parties ceased to have a relationship of love, companionship and support, then this may impact upon any moral claim they may have otherwise had on the Estate. Estrangement may even occur in circumstances where the estrangement was initiated by the testator and the applicant had no responsibility for the estrangement and the circumstances that lead to the estrangement will be considered by the Court.
Estrangement will not automatically or necessarily disentitle an applicant or potential beneficiary and will depend on the circumstances of each individual case.
In all circumstances, the Court will consider totality of the relationship between testator and the applicant. The history and quality of the relationship between the parties is one of many factors that will be considered by the Court in determining whether further and better provision ought to be made for an applicant.
To find out more information or discuss the range of factors a Court will consider in family provision applications please contact our office.