Do estranged family members have the right to challenge a will if they are not a beneficiary?

by The FindLaw Team

Our interactions with co-workers or strangers are for the most part rather civilised because societal norms demand that we treat people who we aren’t related to us with a certain amount of respect. However, when it comes to family relationships, sometimes civility is thrown out the window and relations with loved ones can be fraught. Luckily for most of us, our relationship with family members may not be especially complex and when a loved one passes away, they’ll probably make the appropriate provisions in their will. However, with that being said, it’s also unsurprising to have family members be estranged from one another and when a person does die, a relative can be completely left out of a will and in such an occurrence; what happens? Does a right to challenge the will automatically arise? It’s understandable for a person who has been left of a will to feel aggrieved and in instances where an eligible person does make an application, the courts will look to a number of matters when making a decision on whether a provision will be made to a relative.   

Does estrangement between a deceased and an applicant terminate the obligation to provide?

There may be a belief that estrangement is evidence of the failure by an applicant in maintaining a proper relationship with the deceased – therefore, giving rise to the end of a duty to provide for the family member. However, the courts have tended to consider the emotional and human elements that gave rise to the estrangement, along with the surrounding facts of each individual case. We should also highlight that case law has also applied a relatively high standard of forgiveness that is to be expected of the wise and just testator, and even in instances of outright hostility between the parties, may not be enough to terminate the obligation to provide as Sackville AJA noted in Foley v Ellis [2008] NSWCA:

“The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or the testatrix to provide for the claimant. In Palmer v Dolman Ipp JA, after a review of the cases, observed (at [110]) that:

‘... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’”

The child of the deceased can be left out of a will

If the behaviour of an applicant amounts to conduct that is morally undeserving, callous and hostile in nature, the courts may view such behaviour as enough to warrant the exclusion of the person from the will, as was the case in Ford v Simes [2009] NSWCA 351 where the child of the deceased was left out of the will as a beneficiary

Bergin CJ in the case observed:

“It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children… This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.”

The court will look towards the whole of the circumstances of estrangement

Some readers may be of the impression that the courts will automatically presume that the fault lies with the applicant in instances of estrangement – but this is not the case. The courts will also look into whether or not the deceased lacked the capacity of reasonableness or forgiveness in relation to a dispute with a loved one, and Bergin CJ in Ford v Simes said:

“It is obvious that if the estrangement from the testator is explicable… a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.”

What happens if an applicant was the cause of the estrangement?

In situations where it is clear that the applicant is the source of estrangement, the courts will take into account the seriousness of the conduct. However, misconduct by an applicant does not mean that they will not be successful in obtaining a provision but rather, the conduct may reduce the amount, as was the case in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54. The trial judge in the case dismissed an application by the child of the testator based on the effective abandonment of the deceased in the last years of his life. However, the decision was overturned on appeal with Basten JA finding that if there was no estrangement, a wise and just testator would have left the applicant an amount equal to the other beneficiaries.

Matters involving family provision can be extremely complex and if you do have an issue that requires attention, please seek the help of a lawyer using the FindLaw Directory no matter where you are in Australia. 


We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

Protected by FormShield

We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.