Estrangement- can you claim on a will?

Published 05 Apr 2016

Author: Garbis Kolokossian

It is often that we at GMP, speak to clients where there has been an estrangement between a child and their respective parent. Generally speaking, estrangement is not necessarily devastating to a family provisions claim. This is subject to the facts of each case generally.

When ensuring that we provide our clients with the most up to date advice, we ensure that we are well and truly on top of all results that proceed though Court. In particular we enjoy breaking down and looking in detail at those claims that have been unsuccessful by other Plaintiffs.

GMP Contesting a Will Lawyers were not involved in this case, we do provide a summary for your consideration. It is important to note that if your parent has recently passed away and you are a victim of an estranged relationship, you ought to contact us immediately.

We have successfully prosecuted numerous claims involving estranged family members. If you are estranged contact us. We will provide you with advice on your enquiry and advise whether or not you should make a claim for provision out of the estate.

Burke v Burke [2015] NSWCA 195 (13 July 2015)

Facts

On 30 June 2012, Mrs Beryl Burke (the deceased) died at the age of 93. The deceased was survived by her three adult children: the plaintiff (Terry), the defendant (Alan), who was the executor of her will) and Diana. The deceased had left a legacy of $100,000 to her grandson, Stephen (the sole surviving son from the plaintiff s first marriage) and the residuary of her estate to be divided equally between her two other children. The deceased made no provision for the plaintiff with whom she had no contact for about 20 years before her death.

By a letter dated 5 August 2010, the deceased explained that she had made no provision for the plaintiff to reflect that the plaintiff had become totally estranged from the entire family, and that such estrangement had caused the family a great deal of pain and sadness.

Court proceedings

In June 2013, the plaintiff commenced proceedings in the Supreme Court seeking a family provision order out of the deceased’s estate. The plaintiff was in financial need, having been declared bankrupt on 28 July 2010. The Supreme Court found that the deceased was entitled to make no provision for the plaintiff from her estate on the basis of the estrangement over the years.

The appeal to the NSW Court of Appeal

On appeal, the plaintiff submitted that the estrangement was due to a misunderstanding to which he had contributed and that he had attempted to reconcile the relationship in 2009/2010. In addition, having regard to the size of the estate and his financial need, in the absence of callousness or hostility on his part, the plaintiff argued that the deceased was under a duty to make provision for him.

The Court of appeal dismissed the appeal and upon reviewing the evidence, the Court came to the view that telephone calls made by the plaintiff to the deceased’s nursing home were not genuine attempts at reconciling the relationship and that such conduct was motivated by a desire to ascertain if he was going to receive any inheritance in the estate. More importantly so, the Court rejected the argument that in cases of significant financial need, there would be an obligation for the deceased to make provision for an adult child in the absence of hostility or callousness exercised by the claimant.

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