Please note: This is a fictionalised version of a real outcome in the Supreme Court of Victoria.
The purpose of the #contestawillwithrobinsongill series is to educate the public about the risks, opportunities and realities of disputing wills and estates in plain English.
When a parent’s will only appoints some of their children as executors and beneficiaries of their estate, and excludes an estranged child, does the estranged party have a case to successfully contest the will?
When Lucas passed away at 87 years old, his will stated that his estate (consisting mainly of a property worth in the region of $680,000) was to be left in equal shares to his two children, Henry and Marissa, who were also appointed as executors. Lucas’ will excluded his estranged eldest son, William. William decided to make a claim on his late father’s estate.
Can an Estranged Adult Child Contest Their Exclusion from a Will?
The estranged child, William, claimed at trial that there had been a dysfunctional dynamic in the family since he was young. William argued that he was owed a moral duty by his father, and that he had not been left adequate provision for his maintenance and support. He sought $150,000 from the estate, which would have left his siblings with about $255,000 each. A relevant consideration in considering this claim was the claimant’s financial position, as was that of the beneficiaries named in the will (William’s siblings).
William had been estranged from his father for some time. He had physical and mental health issues, which meant he had not been able to work for many years. He owned a home with an estimated value of $420,ooo (and superannuation of $45,000). William received the government new start allowance, and had previously received a disability support pension.
William’s brother, Henry, who was bequeathed half of the estate, was in receipt of a disability pension due to serious health issues which left him significantly impaired. He owned $200,ooo in shares and $73,000 in cash.
Marissa, the youngest of Lucas’ children, was also set to inherit half of the estate. She was a single mother of two children who both had significant learning disabilities. She was employed and earning $3,000 per fortnight after tax. She owned three quarters of a property with approximately $840,000 equity and had a superannuation of $150,000. She also owned a car worth $40,000. It was alleged during the trial that she had a partner who supported her financially. However, these allegations were denied by Marissa.
Recognising the Child’s Entitlement Rights v Honouring the Parent’s Will
The Court was required to take all relevant factors into consideration, and give them due weight. It’s final decision was made on the following grounds, amongst other factors:
- The Court is to have regard to the reasons for the estrangement and consider the causes. They then, pursuant to the relevant legislation, may consider the character and conduct of the applicant (in this case, William) in making their determination.
- Lucas’ will stated that his estranged son "never visited him". There was no other evidence from the deceased provided to the Court on behalf of the estate in relation to this statement for them to consider, so it came down to the evidence given by the three siblings and other witnesses at trial.
- It was clear that there had been a strained relationship between parent and child. There had been periods of both limited and a complete lack of contact, together with attempts at reconciliation. The Court held that the evidence before them indicated that neither William nor Lucas had ever abandoned the relationship entirely.
- The Court felt that the amount sought by William would fail to afford enough weight to Lucas’ wishes and the competing claims of his other children. This was particularly the case with regards to Henry, who had limited function and relied upon his disability pension to pay for his high medical expenses.
Taking all relevant factors into consideration, the Court’s final decision was as follows:
- The Court confirmed that the question of what was “adequate and proper maintenance” was to be assessed as at the time of trial, not at the time of the deceased’s death. William was awarded $110,000, with the remainder of the estate to be divided equally amongst the beneficiaries of the will. The Court considered this to be adequate and proper and that it would grant William financial support whilst also giving consideration to the other beneficiaries.
- This decision took into consideration the competing claims of the other siblings and the wishes of the testator as outlined in the will, including the intention that the other two children would benefit equally.
- The Court commented on the relevance of disentitling conduct and difficult relationships between children and their late parents. In this case, they concluded that the relationship had not been entirely abandoned by either of the parties, who retained some form of contact throughout the deceased’s life (although with large periods of time in between).
Key takeaways
Real-life scenarios, like William’s, provide a number of key insights which are valuable if you are considering contesting a will. Our key takeaways from this story are:
- Always seek legal advice from an experienced estate litigation lawyer when making a will. They will ensure that all factors and variables are considered and taken into account, particularly in difficult cases of family estrangement.
- Be aware that there is no “hard and fast rule” which prevents an estranged child from making a claim against a will from which they have been excluded. However, the nature of the estrangement and reasons behind the diminishment of a relationship may be an important consideration. Poor or disentitling conduct by the estranged party may have the impact of reducing the amount of any entitlement granted by the Court.
- When estate planning, ensure that you are explicit in your intention that any early inheritance that you provide to others may be in place of any further provision in the event of your passing.
- If you are left out of a will or receive a “less than expected” entitlement, seeking legal advice early is a worthwhile exercise. In Victoria, a will may only be contested if a claim is made within 6 months of probate or letters of administration being granted (some exceptions do apply).
- Successfully contesting a will can have significant financial consequences for the beneficiaries of the estate. Experienced estate litigation lawyers can help defend against claims from other beneficiaries. Legal fees are often funded by the estate itself.
Conclusion.
If you have been left out of your late parent’s will and wish to contest it, seek advice as early as possible from an experienced estate disputes lawyer. Whilst there are always a multitude of factors to be taken into account when challenging a testator’s wishes, there are many cases in which an estranged child may be granted provision by the Court, despite their exclusion from a will.
How can I learn more?
Rachael has helped a number of individuals successfully dispute wills that they have been unfairly left out of or left inadequate provision. She also has experience in defending claims made by individuals against deceased estates.
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