Can you challenge the will of an estranged parent?

Date: May 29, 2015

Many times family disputes can continue even after someone involved has died. If relatives of a deceased people are intentionally left out of the estate, they may seek to remedy the situation by challenging the will in the courts.

It is possible for close relatives of deceased persons to contest a will if they think they are entitled to inherit a share or they require financial assistance. This is known as a family provision.

In a recent NSW case, two sisters made a challenge to the will of their father who had died without making provision for them in his last will and testament.

The daughters of the man succeeded with a family provision claim after their father left them out of his will of an estate valued at about $3.2 million.

Both women had been estranged from their father at the time of his death for about 20 years. However it was found that the estrangement was partially the fault of the deceased.

The daughters were excluded from the will and one of the man's sons was nominated as its executor and primary beneficiary. Another son was to inherit the remaining share of the estate.

During the last years of his life, the father had come to rely heavily on his son for assistance. This help included purchasing a property in Potts Point and preventing the family home from being sold.

In the courts, the brother, now the executor, defended the will and asked for the family provision claim to be rejected. He also argued to the Judge that he had made significant financial contributions towards the estate, so that his share of the assets should be protected.

The Judge decided to award each daughter $450,000, which was taken from the executor's share. This is roughly 15 per cent of the available assets, the same proportion that was given to their other brother.  

An unsuccessful attempt was also made to appeal the decision of the Judge in making this family provision to the estranged daughters. Both women will now receive the lump sum payment in addition to having debts against the estate extinguished.

For advice on contesting wills, contact an estate lawyer.