October 27, 2016
Wills and Estates | QLD
The District Court of Queensland’s decision of Wright v Wright puts into sharp focus the issue of estrangement and whether a testator remains obliged to make provision for a child from whom he or she is estranged, or whether estrangement will form a successful basis to exclude a child from receiving any provision from the estate.
A claim for further provision from an estate (FPA) can be made by an eligible applicant if no or inadequate provision has been made for their proper maintenance and support by the deceased.
Determining whether an eligible applicant is entitled to further provision from an estate is a two stage process:
- The first stage involves consideration of whether the eligible applicant has a ‘need’ or if there is a ‘moral claim’ to be addressed; and
- Once the first stage can be satisfied, the second stage is to determine what provision ought to be made.
When can exclusion be justified?
Section 41(2) of the Succession Act provides that a court may refuse to make an order in favour of a person whose character or conduct is such that, in the court’s opinion, the applicant is disentitled to an order. This is often referred to as ‘disentitling conduct'.
Conduct exhibited by a child may be considered disentitling if the conduct “shows the complete rejection or positive ill-treatment of the parent by the child or a criminal act directed towards the parent (for example, stealing)”.
Does estrangement constitute disentitling conduct?
Over time, the prevalence of estrangement between family members has increased substantially. This gives rise to question of whether there is a moral obligation for a parent who is estranged from a child to provide for them in their will. Previous cases have determined that estrangement in itself is not sufficient to disentitle a child from receiving a benefit from his or her parent’s estate and does not necessarily absolve the parent from adequately providing for their child.
In Wentworth v Wentworth, Estate of G. M Wentworth Bryson JA said:
…A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle…
When will estrangement mean exclusion?
Depending on the circumstances of the estrangement and the extent and causes of the breakdown, an FPA could be dismissed. However, this is not the normal result.
When considering whether the conduct of an applicant resulting in estrangement may amount to disentitling conduct, the court will have regard to the surrounding circumstances and even consider who is responsible for the estrangement. Responsibility for the estrangement has been shown to have an impact on the level of further provision made to an applicant (if any).
Wright v Wright
In Wright v Wright, the applicants (brother and sister) brought an FPA against their father’s estate. The applicants were estranged from their father and had been for many years. The estrangement occurred as a result of a marriage breakdown between the deceased and his wife (the applicants’ mother). The deceased excluded the applicants entirely from his will and left his estate to his own siblings and a charity.
The court carefully considered the issue of estrangement and whether, in the context of the applicants’ financial circumstances, it was proper for the deceased to have completely excluded them from his estate.
In particular, the court examined the various attempts that the deceased’s daughter made to reconnect with the deceased, the number of attempts she made, how the attempts were made and the impact of other family members on the success of those attempts. The deceased’s son also made attempts to reconcile with his father (though none were successful) and told the court of his feelings of abandonment when he was a child and the impact that had on him later in life.
Regard was also given to the deceased’s failure to take steps to contact his children. The deceased’s siblings gave evidence during the trial as to the reasons why no contact was made.
Judge Devereaux SC commented that “…any positive or negative contribution made by a claimant to a period of prolonged estrangement might be relevant to the question whether the person’s character is such as to disentitle him or her to the benefit of an order”. 
Ultimately, the Court determined that the applicants’ conduct did not disentitle them to the benefit from the estate and an order for further provision was made.
Whether estrangement per se can form a strong basis for exclusion is not a clear cut issue. Courts will consider the surrounding circumstances and most certainly the conduct of the parties involved including the deceased. These factors can have an impact on whether an award for further provision is made.
Further, the decision of Wright v Wright demonstrates that the length of time that an estrangement has persisted does not automatically mean that a will maker is absolved of the obligation to provide for potential applicants, in their will.
Obtaining detailed advice about your estate planning is critical to ensure that your estate planning documents are accurately prepared and the risk of a claim being made against your estate following your death is minimised, particularly in circumstances where there is an estrangement. If you would like assistance with estate planning or other estate issues, please contact the McInnes Wilson Lawyers Estate Law Team.
  QDC 74.
 1981 (Qld).
 Re Hallahan (1918) 18 SR (NSW), Re Hardgraves  St R Qd 601, Re Duncan  VLR 355.
 (unreported 14 June 1991). Confirmed later in Wheatley v Wheatley  NSWCA 262 at 22.
 De Groot, J, Nickel, B. Family Provision in Australia (Lexis Nexis, 4th Edition, 2011) p.16.
 Wright v Wright  QDC 74.