It is not uncommon for family members to become estranged from one another for many different reasons.
A falling out in a family not only takes a terrible emotional toll on the people involved but has serious implications for the estate planning of the individuals. Estrangement may result in a family member or members such as children being excluded from receiving anything from the estate of a parent when they die.
But being estranged from a close family member does not preclude a person who has been excluded from the Will from making a claim for provision from their estate. When a spouse, child or dependent of a deceased is not provided for in a will, they are able to make a Family Provision Application (FPA) for greater provision from the estate under Queensland’s Succession Act 1981 (the ‘Act’).
The Court takes into consideration a number of discretionary factors in assessing an FPA. One of the most important factors is the nature of the relationship between the deceased and the applicant. The issue of estrangement in a relationship is one aspect of the relationship that the Court will take into account when assessing the FPA. Whether estrangement is a factor in an FPA will turn on the individual facts of each case.
Can an estranged family member make a Family Provision Application?
Yes, any spouse, child or dependent of the deceased is eligible to make an FPA.
The issue of estrangement is just one of the factors the Court will consider to determine whether adequate provision has been made from the estate for the applicant, and if not, what provision ought to be made.
The Court has held that estrangement in a relationship is a relevant factor. However, the Court will also consider the cause of the estrangement in determining if adequate provision has been made. Was the estrangement caused by the Deceased, and involved no wrongdoing by the applicant? Or was the estrangement caused by the applicant? Were any efforts made by either person to repair the relationship? The facts regarding these issues may impact the success of the application or the amount to be provided to the applicant from the estate.
If the estrangement is found to have been caused by the applicant, their entitlement to provision from the estate may be adversely impacted. In very limited circumstances the Court may even find that the applicant’s conduct toward the deceased was ‘disentitling’ and that the deceased was justified in excluding that person from the Will.
How legal advice can help
Guidance from legal professionals with expertise in wills and estate should be sought if a person is estranged from a close family member and considering making a will, or wishes to make an FPA after being left out of a will.
The issues involved in both situations are complex. While the nature of the estrangement is considered in any court determination of who should benefit from the estate, it is but one of many factors. Expert advice on the relevance and weight of estrangement in your matter is essential. Moreover, this issue can raise strong emotional reactions – the guiding hand of professionals with long experience in succession issues can be vital, so call Delaney & Delaney if anything discussed in this article needs further clarification.