Contesting a will when you're estranged from your parent

Grieving for a parent is difficult. It’s made more complicated if you were estranged before their passing. The estrangement may mean that your parent has not provided for you in their will or has provided less than you anticipated. And that means you may be grieving and experiencing financial distress. 

Can you contest a will when you’re estranged from your parent? The short answer in New South Wales is yes. An estranged child can apply to contest their parent’s will. Here’s how. 

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Contesting a will – what does it mean?

Before we can dive into understanding how the Supreme Court of NSW (the Court) will treat an estranged child contesting the will, we have to understand how to contest a will in the first place. There are many reasons why a child might contest a parent’s will. These include:

• They’ve been unfairly provided for or unfairly excluded.
  

• An invalid will, perhaps for reasons of fraud, forgery or incapacity (among others).

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To contest a will in NSW

If you feel that you have a reason to contest your parent’s will in NSW, you’ll need to first determine if you’re an eligible person under the Succession Act 2006 NSW (the Act). Section 57 of the Act details the ‘eligible person’ list in relation to the deceased person, and naturally includes the deceased person’s child. And, importantly, there’s nothing that requires that the child not be estranged from the parent.

You’ll then need to file an application for a ‘family provision claim’ with the Court. This has to be done within 12 months of the date of your parent’s death. If you are able to show ‘sufficient cause’ to the court the 12-month limit can be extended. 

It’s worth noting that the Court can make a ruling on your family provision application regardless of whether administration has been granted for the deceased person’s estate. So if you feel that contesting your parent’s will is the right step, you shouldn’t wait to file your application.

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Contesting a will – what does the Court consider? 

Just because you file a family provision application doesn’t mean that the Court will necessarily rule in your favour. Section 60 of the Act sets out 16 relevant matters that the Court may consider when determining a family provision order.

1. The relationship between the applicant (for a family provision order) and the deceased person, including its nature and duration.
   
   
2. Any obligations or responsibilities that the deceased person owed to the applicant or any other beneficiary of their estate.
   
   
3. The applicant’s earning capacity, financial resources and financial needs (now and in the future). This can include the financial situation of a person the applicant is living with.
    
4. Any disability of the applicant, including physical, intellectual or mental. This could include for example, if a disability impacts the applicant’s ability to work or save to purchase a home.
   
   
5. The applicant’s age. This can be relevant regarding provision in a will for, for example, their maintenance or advancement in life.
   
   
6. What provision (if any) the deceased person made for the applicant during their lifetime or from their estate.
   
   
7. Whether the deceased person was financially providing for the applicant prior to their death.
   
   
8. Evidence of the deceased person’s intentions regarding the applicant. This could include evidence of what the deceased person said or wrote down about their estranged child during their lifetime.
   
   
9. The applicant’s ‘character and conduct’ during the deceased person’s lifetime and after their death.
   
   
10. Anything that the Court considers to be relevant. 

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How does the Court view estrangement? 

If you’ve been estranged from your parents 

If you’re a child who has been estranged from your parent prior to their death, you might wonder how this applies to the 10 factors listed above. The Court will certainly consider estrangement when looking at the above considerations, specifically focusing on: 

• Any reasons for the estrangement, such as whether anyone was at fault and whether any effort was made to repair the relationship during the deceased person’s lifetime.
  
  
• Whether the will gives reasons or is silent as to why there is no provision made for the child, or why a particular provision has been made for the child. 

Case law may be relevant in a Court’s determination. In Nielsen v Kongspark [2019] NSWSC 1821 for example, Hallen J noted:

• A parent’s relationship with their child changes as the child becomes an adult.
  
  
• An estrangement between parent and child, even for many years, does not mean a parent’s obligation to provide for the child has ended.
  
  
• A person is free to make any or no provision for their child in their will.
  
  
• A family provision application can ‘present particular difficulties’ if the ‘estate is not large’, as any order the Court makes in favour of an applicant is at the expense of any beneficiary under the will (paragraph 321). 

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