Can you leave your estranged children out of your Will?

by Jessica Barker

The Succession Act (NSW) and the Family Provision Act (ACT) allows for “eligible people” to make a claim upon your estate should they not receive what they consider to be adequate provision under your Will. Each case brought before the court is determined on the basis of the facts before the Court and the wishes of the Deceased as shown in their last Will and testament (and previous Wills, if relevant).

In the Supreme Court case of Underwood v Gaudron* one of four adult children brought a claim against her mother’s estate for further provision where she had been left no inheritance. The claimant, Helen Underwood, was hoping to receive an order from the Court that she be provided a share of the modest $350,000 estate, despite the fact she had not spoken to her mother for 20 years before she died.

Helen’s case was largely based on the fact that she had a substantial need to be provided for from her late mother’s estate because she was a pensioner with no assets.

The Court took the following facts into consideration in making its decision:

  • During her lifetime, Helen’s mother provided Helen rent-free accommodation in her own residence for two years. While she was living with her in her own home Helen had been verbally and even physically abusive towards her mother.
  • Helen’s mother asked Helen to leave her home after feeling unsafe, so Helen moved out but after this time did not make any attempts to contact her mother and did not tell her mother where she was living nor did she invite her mother to her wedding.

The Supreme Court dismissed Helen’s claim and furthermore, she was also ordered to pay her own legal costs which were estimated to be approximately $40,000.

In 2015 Helen appealed the Supreme Court’s decision but her appeal was unsuccessful.

It is important to note, however, that estranged children can also be successful claimants and the Supreme Court has made orders in favour of estranged children to be provided for from their parents Estates.

We recommend contacting one of our Wills and Estate Planning solicitors if:

  • you need to review your Will,
  • you are worried about your Will being challenged,
  • or if you believe you have a claim for provision from a family member’s Estate.

Further Reading:

What happens if I leave someone out of my will?
North shore daughter sues sister over mother’s will.

For more information please contact our Wills and Estate Team:

e: info@elringtons.com.au | p: +61 2 6206 1300

*[2014] NSWSC 1055