Many people have the erroneous view that when they die, they can leave their estate to whoever they choose—the corollary being that they can choose to leave out anyone from their will. In the event where there is estrangement between a parent and a child, it may be natural for a parent to wish to exclude the child from the parent’s will. While it is certainly possible to do this, it leaves the will open to challenge by the excluded child under the family provision chapter of the Succession Act 2006 (NSW).
Andrew v Andrew [2012] NSWCA 308 is a recent Court of Appeal (NSW) decision in which an excluded child was successful (by a majority of 2 to 1) in obtaining provision from her mother’s estate, even though they had been estranged for some 35 years. Essentially, at least in circumstances where the cause of the estrangement is unexplained, in order for an excluded child to succeed, he or she need not proffer any serious explanation to justify his or her estrangement from the deceased parent. According to Basten JA, unexplained estrangement in the absence of open hostility on the part of the excluded child is no so reprehensible that it warrants the complete or near-complete exclusion of a child from a parent’s will, provided the excluded child can establish that she is in sufficient need for provision from the estate.
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