Given the ever changing nature of the family unit, there are increasing numbers of children who, for various reasons, have lost contact with their parents. For children in this situation (Estranged Children), being estranged from a parent doesn’t necessarily reduce their prospects of success when lodging a family provision application to dispute a will.
When reviewing family provision applications Courts may consider:
- Whether the gift provided under the Will was inadequate for the child;
- What would have been an appropriate amount for the child considering the size of the estate;
- The child’s financial position;
- The relationship between the child and the deceased parent and the relationship between the deceased parent and other children claiming under the Will;
- Moral obligations a deceased may have owed an applicant with regard to community standards; and
- The intentions of the deceased.
The difficulty for children who have been estranged from a parent for a long period of time, is that they may not have an understanding of the full size of the Estate or assets of their deceased parent.
Recent cases have made reference to the fact that applications for a fairer share of the Will in small estates should be discouraged as the legal costs tend to reduce the value of already small estates, however, each case should be decided on its own merits.
With this in mind, children who have or have not been estranged from their parents and are seeking a fairer portion of a relatively small deceased Estate, need to consider the following before proceeding to Court:
- The value of the estate and the legal costs that are likely to be incurred in proceeding to Court;
- The prospects of success at Court and the chance that their claim may be dismissed altogether;
- Steps they should consider taking prior to seeking a fairer provision of their deceased parent’s Will; and
- If unsuccessful, the Court may order that they pay the costs of the other parties.
It is important that eligible applicants thoroughly consider their position and obtain legal advice when seeking a fairer provision under a Will, due to the strict time frames which apply once their parent has passed away, and the issues outlined above.
If you have any questions relating to family provision applications, estate planning or have estranged children, please do not hesitate to contact me.