I often find that when a client wishes to leave their child or children out of their Will, it is because there has been a period of estrangement between the client and their child. Although you are free to distribute your estate however you choose, a period of estrangement between a Will maker and their child is not necessarily enough on its own to negate the child’s right to contest the Will.

For example, in Smith v Public Trustee [2009] NSWSC 268 the Supreme Court of New South Wales found the Will maker was morally obligated to provide for his estranged children in his Will.

Background

The background of the case is as follows:

1. Mr S made a Will on 27 July 2007, in which he bequeathed his house to his two nephews, and the residue of his estate to the Fred Hollows Foundation;
2. Mr S appointed the Public Trustee of New South Wales his Executor;
3. On his death bed the deceased approached his two children and requested to see them. Both children refused to see him and chose to write him letters instead;
4. Mr S died on 3 August 2007;
5. Mr S’s two children, Ms M and Mr G, contested his Will for provision from his estate.

Circumstances of the relationship between Mr S and his children

Ms M and Mr G submitted the following background of their relationship with Mr S:

1. After moving out of Mr S’s house with their mother, Mr S would stalk Ms M and Mr G at their school and church;
2. Mr S would send Ms M and Mr G abusive letters throughout their childhoods;
3. Ms M and Mr G were still frightened of Mr S until he passed away, which is why they chose not to maintain contact with him.

What did the Judge consider?

When considering whether to make provision from the estate for Ms M and Mr G, the Judge considered the following:

1. The personal circumstances of Ms M and Mr G;
2. The nature of the competing claims for the estate. In this case, the competing claims were Mr S’s nephews, and the Fred Hollows Foundation.

What did the Judge decide?

The Judge found that:

1. It was understandable that Ms M and Mr G did not wish to maintain contact with Mr S during his life;
2. Ms M and Mr G would have ongoing financial responsibilities for the foreseeable future;
3. Mr S’s nephews were not competing claimants as they were not dependent on Mr S and did not see him often when he was alive; and
4. The Fred Hollows Foundation was a worthy charity; however it did not constitute a competing claim on Mr S’s estate.

Decision

The Judge ordered that Mr G and Ms M each receive a legacy of $150,000.00 from Mr S’s estate.
Ms M and Mr G’s costs for bringing the application were also ordered to be paid from Mr S’s estate.

I want to contest a Will. What should I do?

If you would like to contest a Will, you should contact an experienced estate litigation solicitor. Please contact me should you require assistance or advice.