Do I need to provide for an estranged adult child in my will?

December 2, 2015

Unfortunately, there are many reasons why adult children are estranged from their parents. A recent N.S.W case has highlighted a subtle change in the attitude of the Court to the moral obligation of a Testator to provide for such a child.

In the case of Burke v Burke [2015] NSWCA 195 a 93 year old testator left her estate (worth $1.25m) to two of her three children (who were all in their sixties) leaving one son, with nothing. The two children who inherited, were well established financially, whereas the disinherited son had significant financial needs.

The Testator left a letter with her Will explaining that she had not seen her son for twenty years, due to the fact that he had become “totally estranged from us without explanation”. The Applicant Plaintiff gave some reasons for the estrangement at the trial, but this did not change the trial judge’s conclusion that “the Deceased was entitled to regard (her son) as a person undeserving of any benefit from her estate, whatever his financial means.”

This is a departure from previous NSW cases which have found that where the Plaintiff has significant financial needs, he or she may be entitled to further provision unless the applicant has shown “hostility or callousness”. The Court of Appeal upheld the finding of the Trial Judge and dismissed the son’s appeal.

Similarly, until the recent changes to the Family Provision laws in Victoria, the Courts have been able to consider whether the character and the conduct of the parties and the nature of the relationship between them meant that the Testator had a responsibility to provide for his or her adult children.

However, recent changes to the Victorian legislation have precluded adult children from making claims for further provision unless they are dependent on the Testator at the time of death or they are incapable “by reasonable means” of supporting themselves. It will be interesting to see whether the Victorian Courts will agree with the NSW Courts, that estrangement can preclude an adult child even further, from upsetting the wishes of his or her parent.

For more information on the issue of estrangement, or any other issue concerning a Will, an Estate or an Elder Law matter, please contact Madelaine Pelser or Jason Lau of our Wills and Estates/Eldercare Legal team on 9870 8970.

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