Estranged child left out of a will – claiming family provision

An estranged daughter, one of two sisters and the only children of their deceased mother, were engaged in legal proceedings in a contest over their mother’s deceased estate.1 In The Supreme Court of New South Wales, it was said that

The case provides yet another example of the high level of emotion that is generated in relation to the distribution of the property of a parent, particularly in circumstances where there is said to have been an estrangement between the Plaintiff and the deceased for some years prior to the death of the deceased.

Their elderly mother had died in 2015, aged 99, leaving a will made in 2012, her husband having pre-deceased her some years before.   She had left a reasonably large estate, of some $2 million, consisting mostly of real property.  It turned out that the husband had left much of his residuary estate to the estranged daughter.

She left everything to her younger daughter, making her the sole beneficiary, and appointed her executor (technically executrix) of her will.  Nothing was left to her other, eldest daughter, now in her 70s.

It is common enough for willmakers to leave reasons or statements explaining why they may have left someone out of their will, or treated someone differently to others.  However the Court found that the deceased had not left any such explanation for omitting her daughter.

Not surprisingly, the daughter made a claim for family provision from her mother’s estate. Her sister, the sole executor, did not advance a competing financial claim.

The question before the Court was whether a family provision order should be made under the statutory scheme in the Succession Act 2006 (NSW), and if so, the nature and amount. That is, the question was whether the daughter had been left with inadequate provision for her proper maintenance, education and advancement in life.

What is a family provision order?  As the Court said it is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person.

Estrangement – family relationship breakdown problems

The relationship between the eldest daughter and her mother wasn’t good. It seemed that there had been an estrangement between mother and daughter for some years, before the mother’s death.

The defendant executor daughter submitted that her sister’s relationship with their mother was such that she should be regarded as having been “estranged” from their mother, and as a result should not receive any provision out of the deceased’s estate.

The Court observed that

More often than not, in claims for a family provision order in which an “estrangement” is alleged, the reason, or reasons, for the breakdown in the relationship between the deceased and the applicant for provision is, or are, far more complex than the evidence reveals. This is one such case.

The Court said that the parties accepted that what might be described as “estrangement”, in the nature of the relationship, complicates the assessment of the obligation owed by a deceased parent to an adult child.

The parties’ relationships the Court said, is an important consideration in family provision applications.  Among the matters required to be considered by the Court under s 60 of the Succession Act (NSW), the legislation specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”.  Follow the previous link to read more. Courts have said that the deceased’s conduct must be a relevant factor in this context.

In such difficult cases, when considering the evidence before it, Courts take into account, or are alive to the fact that the deceased’s version of events is not available, and caution is necessary when considering evidence presented from the parties. Furthermore, as the Court said, is not at liberty to ignore the deceased’s freedom of testation.

Attempts at reconciliation from an estranged relationship are important

The evidence showed that estranged daughter had made attempts to reach out to her mother to resolve the dispute between them, to maintain a relationship, but for her own reasons, the deceased did not exhibit any similar desire. The Judge regarded the Plaintiff’s attempts to retain or rekindle the relationship with the deceased as important. She attempted to make amends, before, and at the end of, the deceased’s life by attempting to keep in contact, and by visiting the deceased not long before her death.  Regrettably, the Court said, the deceased, as a wise and just testatrix, prior to this time did not extend the hand of forgiveness to the Plaintiff.

The parent’s obligation to make adequate provision

In this respect the Court said that:

“I do not regard the circumstances of the Plaintiff’s relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper maintenance and advancement in life of the Plaintiff. However, the nature of the relationship between the Plaintiff and the deceased, and the fact that the Plaintiff received, effectively, the whole of her father’s estate, does warrant a slight moderation of the amplitude of the provision that, otherwise, would be no more than adequate for her proper maintenance and advancement in life.”

The Court found that the

  • the estranged daughter was an eligible person within the categories in the legislation, s 57 of the Succession Act 2006 (NSW), being a child of the deceased,
  • that the application was made within the time limit, and
  • that the provision made for her in the deceased’s Will was inadequate for her proper maintenance or advancement in life; and
  • ordered that she receive a lump sum of $425,000, to be paid with 28 days.  This amount was arrived at, as the Judge explained at length: “Having considered all of the matters I am required to consider, taking into account all of the circumstances of the case, including the nature and value of the estate, the nature of the relationship of the Plaintiff and the deceased, … her financial resources (including earning capacity), both present and future, as well as the competing claims of the Defendant as the chosen object of the deceased’s bounty, doing the best I can, I consider the amount of the lump sum that the Plaintiff should receive is $425,000.

Such a legacy will still leave the Defendant with about $1.375 million in recognition of her moral claim on the deceased’s testamentary bounty.”

Legal costs in bringing and defending the proceedings

The sisters incurred major legal costs in this contest.  At the time of the hearing in discussing the legal costs, the estranged daughter’s costs were estimated to be $108,000 while the defendant executor’s were $117,000.  How the burden of such costs were to be borne was reserved until a later date.  Subject to how much would be paid from the estate, it was estimated that the net amount available for distribution would be about $1.8 million, a large amount.  More on costs in family provision can be read here, and some things to consider for adult children claiming from a parent’s estate can be read here.


1. Jodell v Woods [2017] NSWSC 143

B Stead
BHS Legal

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

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