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How does Estrangement impact a Family Provision Claim?

Family Law

How does Estrangement impact a Family Provision Claim?

A Family Provision Act claim (FPA claim) is one of the main ways to challenge a Will.

To make this sort of claim, a person must be an ‘eligible persons’, for example be the spouse or child of the will-maker (the Testator). It is a claim that founds itself on the idea that “adequate provision” has not been made for a particular person.

Estrangement is a factor that is considered by the Court when determining what is “adequate provision” in a case. So, what is estrangement and how does it effect an FPA claim?

Estrangement is a common reason for a Testator to disinherit or make a smaller provision for a particular person in the Testator’s Will. This commonly occurs where a parent Testator has had little to no contact with an adult child for a prolonged period.

After the Testator has died, that adult child may bring an FPA claim to try and obtain some provision, or further provision, out of the Testator’s estate. Evidence will be required in the Court proceedings for the FPA claim that goes to the relationship between that child and the Testator, including the nature of the estrangement.

Estrangement has been defined by the Court as “the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship…” (Lathwell v Lathwell [2008] WASCA). The Court has also remarked that:

The poor state of the relationship between the applicant [i.e. the person making the claim] and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made”. (Keep v Bourke [2012] NSWCA)

Accordingly, estrangement can weaken and potentially nullify an FPA claim. However, the impact estrangement has on an FPA claim depends on the particular circumstances of each individual case.

If you would like advice about a potential FPA claim, please do not hesitate to contact our Succession Law Solicitors at Brazel Moore Lawyers on (02) 4324 7699.

 

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