3 common questions about estrangement and family provision claims

Date: Feb 02, 2015

When individuals who are estranged from their deceased relatives begin to consider whether or not to launch a family provision claim, they will often have a number of questions about this process.

To help individuals who find themselves in this position, here are three of the most common questions estranged relatives will ask before contesting a will:

Am I eligible?

The Succession ACT 2006 (NSW) lays out specific guidelines for who is eligible to make a family provision claim. These conditions are usually limited to immediate family members, as well as those who might be deemed to be financially dependent on the estate.

This means that estranged relatives are eligible to make a family provision claim, provided they can demonstrate an obligation on the part of the deceased to provide them with ongoing support.

What will the courts take into consideration with a case of estrangement?

When considering a family provision claim from an estranged relative, the courts will need to consider the reason for the estrangement and the existing provision contained within a will. Those who are undertaking the estate planning process are entitled to use estrangement as a justification to not include a relative within their will.

In this case, the applicant will need to demonstrate that this restriction violates the obligation the deceased had to support them.

Other factors the courts will consider beyond the expressed position of the deceased include the details of the estrangement and the behaviour of the relative before and after the deceased's passing. The courts may also consider whether any attempt at reconciliation was made by either party in the past.

What happens in cases where the applicant was at fault for the estrangement?

While the courts have the power to determine who was at fault in the event of an estrangement, that does not immediately mean that the applicant will not be eligible for a share of the estate if they were responsible.

Instead, the courts may adjust the different allowance an individual is entitled to, or rule that the conditions do not warrant a change in how the estate is already divided.

If you would like more information about the process of applying for a family provision claim as an estranged relative, make sure to consult with a family lawyer. They will be able to advise on the most effective course of action, based on your personal circumstances.