How can estrangement affect a family provision claim?

Date: Aug 19, 2015

People who feel they have been inadequately provided for in someone's will can file a family provision claim in an attempt to change how the deceased's assets are distributed.

Anyone who is considered an eligible person under the Succession Act 2006 (NSW) can pursue this type of inheritance dispute. However, if the individual has been estranged from the deceased in the years leading up to their death, this could have an effect on the final outcome.

Communication between loved ones can break down for a number of reasons. There may be a clash of personalities, misunderstandings, abandonment issues or hostility that is the root of the problem.

Nevertheless, while an estrangement could affect the success of a family provision application, it's important to note that these situations do not necessarily exclude eligible people from pursuing a claim.

Leaving someone out of a will can therefore spark a dispute, which may result in the courts making provisions for the claimant from the deceased's estate. As such, it is important for individuals to seek the services of a wills and estates lawyer prior to writing a will. This should mitigate the chances of problems arising after the testator's death.

Factors considered in estrangement

If a family provision claim makes it to court, the judges will take a range of factors into account regarding estrangement. The courts must balance the final wishes of the testator with the rights and needs of the individual making the claim.

Common issues that arise in estrangement cases include:

  • The testator's reasons for leaving the claimant out of their will
  • The length of the estrangement and who instigated it
  • Whether there were attempts at reconciliation
  • Claimant's behaviour before and after the deceased passed away
  • The claimant's current financial situation
  • Future needs of the claimant, including maintenance and education
  • The size of the estate
  • How other beneficiaries will be affected

Predicting the outcome of a family provision claim can be difficult - and this is particularly true when estrangement is a factor. People hoping to file an application should seek advice from an expert lawyer who can guide them through current legislation and the processes involved.

Ultimately, while an estrangement may impact whether or not an individual succeeds in court, every claim is judged on a case-by-case basis depending on the evidence at hand and a number of other factors.