Estrangement – where two family members have cut their ties and are no longer in contact – can create a significant obstacle for individuals as they undertake the estate planning process.
Under Queensland law, eligibility to lodge a family provision claim is limited to a number of key groups, including the spouse of the deceased, the deceased's children and any individuals who might be financially dependent on the deceased.
Although this does mean that an estranged child is eligible to contest a will, it does not necessarily mean this application will be successful.
As with all family provision claims, the Courts will consider the eligibility of the applicant under the Succession Act 1981 (Qld) and the financial position of the applicant. However, in a case of estrangement, the Courts will also need to go further and consider which party was responsible for the estrangement and whether any effort was made to repair the damage to the relationship.
As well as being relevant as to whether or not a family provision claim is successful, these considerations also play a role in determining the size of any award granted as the result of a successful claim.
The Courts will also consider the will (or other documents) as to whether they offers an explanation as to why an estranged child has been left out of an individual's will. In cases where the child is simply omitted, the applicant may have a better chance of a successful family provision claim, compared to a case where the will-maker has given a specific reason for not including them.
For individuals who are considering lodging a family provision claim on the estate of their deceased relative, it is important to seek the right legal advice in order to give the application the best chance of success.
For individuals who are considering lodging a family provision claim on the estate of their deceased relative, it is important to seek the right legal advice in order to give your application the best chance of success. Consulting with a wills and estates lawyer is an essential first step to begin the process of seeking a family provision claim.