The right to leave your property on death to whomever you choose is of fundamental importance to most Australians. However the courts have a wide discretion to make awards contrary to the express provisions contained in a Will in what are known as Family Provision Applications. A Family Provision Application is the most common type of challenge to a will and can be brought where for example everything is left to one child instead of dividing their belongings amongst the other children or a spouse including a de facto spouse.
Even where a child fails to have a relationship with their parents they still may be just as entitled to a share under the will as a child that shared a close relationship with their deceased parent. This is what occurred in the recent case of Keep v Bourke  NSWSC 88 where despite a 38 year estrangement between mother and daughter the court awarded the daughter $200,000.
Mrs Keep died leaving two daughters and a son. She split her estate evenly between one of her daughters and her son. She made no provision for her estranged daughter Marion. Mrs. Keep stated in her will, ‘I have made no provision under my Will for my Daughter because of her complete lack of concern or contact with me and other members of the family over a long period of time.’ The 38 year estrangement began when Marion took a Husband (Robert) that Mrs Keep did not approve of. Her parents refused to attend her wedding and returned the invitation with a note stating that they wished to have nothing more to do with her.
Soon after her marriage Marion received a bizarre letter from Mrs Keep threatening to sue her if she did not pay for the upkeep of her cat which she left behind after the marriage. Contact occurred on only 5 more occasions after that. On the first occasion Marion encountered her mother by chance shortly after the birth of her first baby. Marion covered the baby with a blanket and continued to walk straight past without speaking. On the second occasion Marion and her children visited her father in a nursing home shortly before his death in 1986. Marion’s father asked Mrs. Keep to buy sweets for Marion’s children. Mrs. Keep refused stating that she had left her purse at home. The primary judge found that it was likely that she had not left her purse at home. On the third occasion Marion and Mrs. Keep saw each other soon afterward at Marion’s father’s funeral. They did not speak to each other and neither Marion nor her children were mentioned in the course of the funeral service.
On the fourth occasion Marion and Mrs. Keep encountered each other at a relative’s funeral. Marion asked Mrs. Keep where the relative’s remains were and Mrs. Keep gestured in the relevant direction. The last meeting occurred when Marion and her daughter visited Mrs. Keep in hospital a matter of hours before her death and at a time when she was unconscious. Mrs. Keep did not regain consciousness whilst Marion was there.
The Judge stated “Although there was no state of hostility between Marion and the deceased there is a sense of a child treating her parent callously by not taking any steps to end their estrangement. The same can be said of her mother’s stringent refusal to make any attempt at reconciliation. At least two opportunities occurred when this could have happened. Because of the later aspect I do not think that the plaintiff should be barred from making a claim. But the plaintiff’s conduct means that her moral claim on the testator’s bounty is reduced.” The judge examined the financial and social circumstances of Marion’s siblings noting that they both did not work, were not of good health, relied on social security payments, were living in deceased’s home and wished to continue doing so. Marion, by this time was divorced, had four children, (one with disabilities), and was on social security. After taking all the above circumstances into account the court awarded Marion provision of $200,000 out of the estate.
An estranged child left out of the Will may be entitled to make a Family Provision Application. The characterisation of the relationship will be important in determining success. However, if adequate and proper maintenance has not been made, and there is a need, a court may disregard the testator’s wishes and award a substantial legacy to the Black Sheep of the family.
For more information please contact Evan Sarinas of Sarinas Legal.
This release is not intended as legal advice and all liability is disclaimed for reliance on it.
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