It is not uncommon for the bonds between parents and their children to fracture, leading to strained relationships and, in some cases, parents excluding their children as beneficiaries from their wills.
In this article our Contesting a Will Lawyers answer the pressing questions like “can an estranged child contest a will” and “what can estranged daughter left out of a will do”?
The law in Queensland allows for children to contest a will for further provision from an estate, providing a glimmer of hope for estranged children seeking justice.
If I am Estranged from my Parent can I get a Copy of a Will?
Under s 33Z of the Succession Act 1981 (QLD) children, including estranged children, of a deceased person are entitled to inspect a copy of the final will of the deceased, as they retain the eligibility to contest it. This access it crucial, as it allows children to understand the nature and size of the estate, enabling them to make an informed decision regarding whether or not to contest a will. If the executor of a will refuses a child a copy of the final will it is important to seek solicitor advice immediately.
If a child does not know who holds the last will of the deceased, the Queensland Law Reporter advertises probate notices which will show the name and address of the person or firm making an application for probate.
If I am Estranged from my Parent will I be Successful in Contesting their Will?
The Succession Act 1981 (QLD) recognises that a number of factors need to be taken into consideration when considering if a child should receive further provision. These factors are considered to determine whether or not the deceased’s will failed to adequately provide for their child. When an estranged child contests a will the court may consider the following:-
The Nature of the Estrangement
The court will look at a number of elements when considering estrangement including: who caused the estrangement, why it was caused and the length of the estrangement. The court will seek to understand the reason behind the breakdown in the relationship and the contributing factors which led to the estrangement.
The Conduct of the Estranged Child
The court will consider the conduct of the estranged child. For example, the court will take into account if an estranged child displayed disrespectful or criminal behaviour towards the deceased.
The Financial and Medical Circumstances of the Child
The court will take into consideration the child’s financial and medical circumstances to determine how much ‘need’ a child has for further provision from the estate. When considering this, the size of the estate must also be taken into consideration. The case of Blore v Lang examined that in a larger estate the need of an applicant may extend beyond the “bread and butter of life” to include “a little of the cheese or ham that a wise and just parent would appreciate should be provided if circumstances permit.”[1]
The Moral Obligations of the Deceased
The court will assess how much moral obligation the deceased had to look after their child, including how much support the parent already provided the child.
Competing Claims on the Estate
The court will not only consider the estranged child’s circumstances but the circumstances of all parties involved, including the beneficiaries of the will and other eligible applicants.
Queensland law does not disqualify an estranged child from contesting a will but takes into account all the relevant factors and gives each factor due weight. For example, if the estranged child showed no disentitling conduct towards the deceased and is experiencing financial hardship, these factors may weigh in their favour. However, in some cases estrangement has been seen to be so serious that cases for further provision have been dismissed.
Time Limitations
There are strict time limitations in Queensland for a child to contest an estate for further provision. An eligible applicant has 6 months from the date of death to provide written notice to the executor of their intention to bring a claim. The applicant must then file Court proceedings within 9 months of the date of death.
Will an estranged daughter left out of will succeed?
An estranged daughter can contest a will, and they will be successful if they can demonstrate a need for provision. The claim process discussed above is complex, consult our will contest lawyers to assess your chances of successfully obtaining money from the estate.
Get an Estate Litigation Specialist to Review your Claim
Each case is individual and unique and it is important to discuss with a solicitor your prospects. Given the time limitations involved, it is crucial to seek legal advice as soon as possible to understand your rights and options. It is recommended to speak with a solicitor who specialises in estate litigation.
Contact Will and Estate Lawyers Australia on (07) 3073 2405 to organise a free one hour consultation with an estate litigation specialist to discuss your claim.
[1] (1960) 104 CLR 124, 135
