Son’s family provision claim after estrangement fails on appeal

Published 14 Jul 2015

family provision claim enables people to challenge a will if they feel a loved one hasn’t adequately provided for them, or if they have been left out of the estate planning process entirely.

However, not all claims are successful and the courts often take into account the relationship the individual had with the deceased in the years prior to their death.

A recent case heard in the NSW Supreme Court saw the son of a woman launch a family provision claim after he was not included in her will following an estrangement.

The man’s mother had left his son, her grandson, $100,000 but failed to leave any of her estate to her own son. The remainder of her assets were split equally between her remaining two children – another son, who was the executor, and a daughter.

In a letter accompanying the will, the deceased said she had not made provisions for the claimant because she had not spoken to him for 20 years before her death. She added this had been his decision and the break-up of the family had caused considerable heartache for those involved.

The original judge agreed with the woman’s choice and the son did not receive any provisions from his mother’s will.

Launching a family provision claim appeal

The man contested the decision from the first hearing, stating that the judge had failed to take into account the importance of an attempted reconciliation he made in 2009-10.

He also said the estrangement was primarily due to an incident where his mother had ignored and turned her back on him when he visited her at a bowling club. The appellant said the judge failed to place enough importance on this event, which he argued was the pivotal moment in their estrangement.

However, the appellate judges ruled the bowling club incident was the culmination of various arguments in previous months and not the sole reason for the breakdown in the relationship.

The man’s siblings argued tensions were already high before this, with the appellant claiming he wanted to start a new life with his second wife that had little family involvement.

The attempt at reconciliation was also contested, as it came at a time when the claimant had recently encountered financial problems. He would later go on to file for bankruptcy and his siblings suspected the primary reason for the reconciliation was to ensure he was included in his mother’s will.

According to court documents, the original judge did not therefore err in his original decision. As such, the appellate judges rejected the man’s appeal with costs.

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