Estranged daughters lay family provision claims

Published 10 Jun 2014

When you lodge a family provision claim, the Supreme Court of New South Wales will consider your relationship to the deceased in order to determine his or her moral obligation to financially provide for you.

In most cases, direct descendents- such as children and grandchildren – are automatically considered eligible persons and are able to contest a will if they believe they have been unfairly treated. However, estrangement can make family provision claims much more complicated, as shown in a case recently seen by the Supreme Court.

Estranged daughters contest their father’s will

A pair of daughters who had effectively been estranged from their father for 21 years prior to his death have lodged family provision claims against his estate.

When the deceased passed away in 2012, he left 85 per cent of his estate to his eldest son and 15 per cent to his youngest. His will clearly stated that because of the estrangement from his daughters, and their capability to care for themselves, he wished for them to receive nothing.

Following their parent’s divorce in 1991, the deceased had cut off all communications with his ex-spouse, who signed a waiver to terminate any interest in the deceased’s business and estate. This troubling family dynamic also led to the daughters breaking off all contact with their father.

The Supreme Court found that the daughters’ decision was primarily influenced by the physical and mental abuse the children and their mother had suffered at the hands of the deceased. The Court accepted this version of events, particularly as the eldest son’s relationship with his father seemed to be built almost exclusively on financial importance.

As the major beneficiary of the will, the eldest son was also considered the estate’s defendant. He claimed that the estrangement should result in his sister’s receiving nothing from their father.

The Court, however, disagreed. After looking into the relationships and family dynamic, the Court decided that the deceased’s $3.16 million estate needed to be shared more fairly among his children.

As their father, the deceased had a moral obligation to provide for his daughters, particularly after the alleged abuse suffered in their childhood. It was therefore decided that each plaintiff would receive $450,000 from the estate, as well as having their family debts and legal costs excused.

If there has been an estrangement in your family, do you understand your rights regarding family provision claim? Contact a contesting wills lawyer to find out more.

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