Fractured relationships are often the main reason a person will have been left out of a will. A spouse, child or dependant in this situation can bring an application against the estate seeking further provision. The law relating to claims on the estate is quite technical. It is not a question of what is fair or equalising a distribution between siblings. Where there have been long periods of estrangement there are further assessments which need to be made.
What does the law say?
In Queensland Section 41 of the Succession Act 1981 sets out the law which relates to applications for further provision. In summary Section 41 says:
If a person dies with or without a will and has not made adequate provision for the proper maintenance and support for their spouse, child or dependant, the Court may order such provision as the Court thinks fit. Importantly the court may refuse to make an order if the Court thinks that the Applicant’s character or conduct disentitles them from an order or where to refuse to make an order would be reasonable.*
How does estrangement affect an application?
The nature of the estrangement and the underlying reason for it is relevant but the mere fact of estrangement between parent and child should not ordinally result, on its own, in the child not being able to satisfy the jurisdictional requirements under the Act.**
It is likely that a Court considering the matter objectively may form the view that the alleged estrangement is not as serious as the subjective applicants may feel it is. For that reason even where there has been a period of estrangement for serious reasons in the applicant’s mind, a Court may take a different view.
The factors considered by the Court generally look at whether the estrangement was caused by the applicant, caused by the deceased, or where there was fault on both sides.
Where the estrangement was caused by the applicant, has been ongoing for a long period of time and no reconciliation occurred prior to death any provision likely to be me made will be modest. Where the estrangement was caused by the deceased and reconciliation was not possible during the deceased’s lifetime, the court is not likely to take the estrangement into account when considering provision from the estate. Where there has been fault on both sides it is likely that some provision will be made but the conduct will be taken into account. If reconciliation occurred prior to death, then the estrangement is unlikely to have any impact at all.***
If you are considering a claim and there has been a long period of estrangement it will be necessary to receive advice and get a proper assessment about how your case might be managed. Your legal advisor will need to know how serious the estrangement was, what and who was the cause of the estrangement and whether any reconciliation occurred or was attempted prior to death.
If you are the executor or other family member you will be required to put forward evidence of the relationship in responding to a claim. You will need to understand how this evidence is presented in court and whether the Court will take it into account in responding to the claim. It is clear from the case examples that even where the estrangement is caused by the applicant, the court is likely to make some provision, albeit a modest provision.
Regardless of whether you are the potential applicant, the executor or another beneficiary it is important to get advice about the particular circumstances of your case. There are significant consequences relating to costs if an application is brought by an applicant without merit (that is, that the disentitling conduct is accepted by the court) and you may end up with a bill to pay the legal costs of other parties if you are not successful. It is also important to understand the process involved in any claim.
* Section 41(1) and (3) Succession Act (Qld) 1981
** Niebour-Pott & Anor v Pott  QSC 7
*** See generally de Groot & Nickel, Family Provision in Australia