What factors do judges consider for estranged claimants?

Published 23 Jan 2018

Author: David Cossalter

Estrangement is an unfortunate reality for many families in Australia. Parents and children can lose touch for a number of reasons, leading to hostility, resentment and inheritance disputes.

Nevertheless, relationship breakdowns between relatives don't prohibit family provision claims. In other words, individuals may still be entitled to receive a larger share of the deceased's estate even when estrangement has occurred.

If the case goes before a judge, they will decide whether or not the estrangement is a defining factor that should prevent the plaintiff from being awarded a legacy. But what will the courts take into account?

1. The nature and duration of the relationship

The Succession Act 2006 specifies that judges should consider the quality of the relationship between the estranged family members.

Common issues that arise include who was responsible for the relationship becoming strained and whether either party made attempts to reconcile the situation prior to the deceased passing away.

However, plaintiffs can still receive a favourable ruling even in cases where they are partly to blame for the estrangement and made little effort to improve communication.

2. The financial needs of the plaintiff

Judges will take into consideration both the claimant's financial needs and the size of the deceased's estate.

For example, if the plaintiff has serious health problems, a poor earning capacity and mounting debts, the courts may rule they should receive provision from an estranged parent's sizeable estate.

But these needs will be measured against the requirements of other beneficiaries named in the will.

3. The behaviour of the plaintiff towards the deceased

The claimant's character and conduct before and after the deceased's death will be reviewed in the context of their inheritance dispute. Plaintiffs and defendants can call witnesses to support their version of events.

While hostility or pettiness towards the deceased is not necessarily terminal for a claim, it is likely that poor behaviour will count against the plaintiff. As such, they may receive a smaller settlement even if their case is successful.

Pursuing a family provision claim

Estrangement could have an impact on the outcome of a family provision claim but, as we can see, the breakdown of a relationship does not exclude a claimant from contesting a will.

If you would like to discuss an inheritance dispute in NSW, please contact Gerard Malouf & Partners Will Dispute Lawyers for experienced no-win, no-fee legal advice.

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