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How does estrangement affect a contesting wills claim?

Family relationships are complicated and can change over time, a fact that becomes increasingly important when it comes time to contest a will. The Succession Act 2006 (NSW) exists to ensure beneficiaries who were part of a deceased’s family have a basis on which to challenge the distribution of an estate.

However, while the Succession Act seeks to provide people with this opportunity, it’s not a guarantee that anyone who contests a will based on their familial relationship will be automatically compensated. Along with a person’s current and future financial status, one of the most important things the courts will consider is the nature of their relationship to the deceased.

In some cases, an estranged child of the deceased can still claim against the will of their parent. What does this mean for their appeal?

Can people deliberately leave their successors out of a will?

A will is a document that allows a deceased person to distribute their estate according to their final wishes, a fact which may leave possible beneficiaries with no provision. One of the most common reasons for this is due to relationship breakdowns that lead to people losing contact for years prior to the deceased’s passing.

In these cases, it makes sense for an estranged child to be left out of a will, as the nature of their relationship with the deceased has deteriorated.

Will the courts consider an estranged child’s request for provision?

Although a person is perfectly entitled to leave estranged family members out of a will, these people can contest a will they feel their case didn’t meet the criteria for estrangement.

However, it also is not the case that a person will be provided for just because they are a family member. Proving the deceased and their child were not in an estranged relationship simply allows the child to be considered an eligible person. They will then have to justify their application for a provision claim.

How do the courts judge estrangement?

As with any contesting wills case, the courts will take into account a child’s need for financial assistance in the event a relationship has broken down, using both their current and future needs as a starting point.

The courts will also investigate the nature of the estrangement, including elements such as the total time the pair were out of contact with each other and the reasons for this relationship breakdown.

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Contesting Wills
 — Gerard Malouf & Partners

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