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Have you been left out in the cold in your parents’ wills? 

Succession Law News | December 2012

Andrew v Andrew [2012] saw an increase in the bequest to an estranged daughter from her mother’s estate. The estate’s total value was approximately $800,000 with more than half of this sum left to the only son of the testator in recognition of works done on the principal asset, that being the family home. The daughter had been left a modest $10,000 from her mother’s will while her three sisters were each left about $120,000. The Court noted that while the daughter was estranged from her mother and chose not to contact her, which had caused the mother some distress, there were other factors to take into account that made the nominal bequest inappropriate in the circumstances. The applicant in this case had been raised by her parents during her early life and the daughter chose to leave the family but was still in contact with other family members. Also the daughter was in greater need than her siblings and was not approached by the testator at any time to have the relationship renewed. The Court found that while it was expected that she would be left a smaller bequest than her siblings, the sum of $10,000 was not adequate provision in the circumstances.

The second case, Keep v Bourke [2012], also heard in the New South Wales Court of Appeal involved slightly different circumstances. In this case a mother decided to exclude her second daughter from receiving any benefit from her estate due to her ‘complete lack of concern and contact’ with herself and other family members over a long period of time. The second daughter brought an application against the estate, which was left to her two siblings.

The circumstances of the applicant’s estrangement were related to her marriage, originally opposed to and not attended by her parents, who returned the invitation to the wedding with a note that they no longer wanted anything to do with the applicant. The applicant had very few interactions with her mother after this time, each of them being a negative experience for the parties. The applicant also failed to have positive relationships with at least one of her siblings up until the death of their mother. The applicant had sought out her mother on one occasion before her death and the mother attempted no such interaction. The applicant at the time of her mother’s death had been divorced and had children of her own. Her siblings had continued to live with her mother in the family home, where they wished to remain, and one suffered from an illness. The Court found that the attempts made by the applicant to resurrect her relationship with her mother and the financial need she found herself in justified orders for provision to be made out of the estate of an amount slightly less than that left to each of the other siblings.

These cases indicate that estrangement from family will not exclude children of the deceased from succeeding in an application for a greater share of their parent’s estates.

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