The Succession Act 2006 (NSW) outlines the processes for the preparation, execution and alteration of wills. The Act governs also provides for “family provision claims” to ensure adequate provision is made for members of a deceased’s family. Through this, remedies can be made to eligible persons, including family members who have become estranged from the deceased, to contest a will.
Only “eligible persons” are permitted to challenge a Will. Section 57 of the Act defines eligible persons as the deceased’s spouse, former spouse, de facto partner, child, or grandchild. Eligible persons also include individuals dependent on the deceased or those living in a ‘close personal relationship’ at the time of death. A child who has not had a relationship with the deceased for many years remains an eligible person.
A recent case of Kitteridge v Kitteridge confirmed that mere estrangement will not of itself validate the exclusion of an eligible person from a deceased’s will. The Court’s guiding principle is to ensure that a will adequately provide for the contester’s ‘proper maintenance, education or advancement in life’.
Vested with discretionary power, under section 60(2), the Court may consider the following when assessing a family provision claim:
- The nature and duration of the deceased and applicant’s relationship
- The nature and extent of the deceased’s obligations to the applicant
- The nature and extent of the deceased’s estate
- The financial resources and needs of the applicant
- Physical, intellectual or mental disabilities of the applicant
- The age of the applicant
- Contributions made by the applicant to the improvement, conservation or acquisition of the deceased’s welfare, the deceased’s estate or their family’s welfare
Recognising parental obligations is critical in applying the concept of estrangement to the above considerations. In Kitteridge, the Court was guided by the concept of whether the will adequately and properly acknowledged the moral duty owed by the deceased to an eligible person. The Court determined that the deceased, as the applicant’s mother, had not fulfilled her obligation as a wise and just testator. The Court noted the nature and extent of estrangement, including the role of the deceased in the breakdown of the relationship and attempts at reconciliation. The applicant’s and his wife’s financial needs were considered, including the lack of owning real property. Ultimately, despite an estranged relationship between the applicant and the deceased, the Court made an order for further provisions to the applicant.
As the Court pays ‘close attention to the facts of individual cases,’ there are avenues for estranged persons’ to make successful family provision claims. The mere existence of estrangement will not render it impossible to make successful claims. However it is important to consider the actions and role of the applicant in the relationship breakdown. Callousness and hostility on the applicant’s part may ‘terminate the moral duty’ of the deceased to the applicant.