A question I am often asked is can I challenge my dad's will (or my mother's) will?
The answer is almost always yes.
A common situation is where your mother and father separated. When this occurs when the children are very young (and often even where they are older), there is sometimes little contact between those children and their natural parent. Often, there is animosity between the children and the parent from whom they are separated. This is commonly referred to as “estrangement”.
What is the effect of estrangement in Family Provision Cases?
There are, of course degrees of estrangement, ranging from disinterest in the other person's affairs to outright hostility or the lack of any contact at all.
In Western Australia, The Family Provision Act provides that an eligible applicant can apply to the court where that person is of the view that the provision (in the will) made for them is not 'adequate and proper for the maintenance, education or advancement in life' of the applicant.
A court, completely at its own discretion, may vary the terms of the will so as to make provision for the applicant.
With the high prevalence of divorce in western society, the situation often arises is that (now adult) children are estranged from one of their biological parents for many years before that parent dies.
In the recent case of Lysaght v Lysaght, the Supreme Court of Western Australia considered the issue of estrangement.
The facts of that case were that the Deceased married in 1972 and separated in 1977. There were two children of the marriage. At the time of separation the children were aged 2 and 4.
The mother basically painted the picture of the father being a 'dead beat dad' who had little regard for the children and paid little child support. However, the father paid child support as assessed by the Child Support Agency and tried, so far as possible, to maintain a relationship between the children and his own family (his parents and his brother and sister).
The father had contact with the children in the often 'standard way'(that is, every second weekend and some of the school holidays). The children would spend time with his parents and his brother and sister.
When the children were teenagers, they stopped spending time with their father at all. Later, as they turned 18, they wrote to him requesting that he continue to pay child support (which he did) whilst they attended university. Sadly, he never saw either of his children again from 1992. He died in 2015. He left a very modest estate valued at about $475,000.
His will omitted his children entirely and left his estate 15% to his brother, 15% to each of his elderly parents (aged in their late 80's), 35% to his sister and 20% to a girlfriend in Thailand. He had known the latter for about 8 years and visited her on regular golfing trips to Thailand. He also made regular monthly payments to her for about four years before he died.
Of course, his children attended his funeral and duly lodged a claim under the Family Provision Act seeking that provision be made for them.
The matter was the subject of a mediation conference in the Supreme Court as all such matters usually are). There were difficulties in serving the Thai girlfriend with the proceedings and she neither attended the mediation nor participated in the proceedings in anyway.
The 2nd to Fifth Defendants (that is the brother, sister and parents) did not have any pressing need for provision from their brother's estate. Essentially, they were the natural objects of his testamentary intention.
At the mediation, the Defendant's offered to settle the matter by paying to the Plaintiffs 50% of what they would receive under the will. This was about $180,000 or $90,000 to each of the Plaintiffs. Shortly after the mediation, the Defendants increased the offers to $120,000 for the daughter and $80,000 to the son.
The matter did not settle and proceeded to a trial.
Just before the trial the Plaintiffs offered to settle the matter on the terms that the costs of the Defendants be paid out of the estate and that the entire remainder of the estate should go the Plaintiffs.
At trial, the Plaintiff's lawyer submitted that the First Plaintiff should be awarded $200,000 and that the Second Plaintiff should be awarded $300,000. This, of course, was more than was actually in the estate so it was always unlikely to occur. The position adopted by the Plaintiff's seemed to run counter to the long accepted view that the court will only disturb a will to the extent necessary to make provision for the applicants. If that were not the case, there would be little left in the way of freedom of testamentary provision.
Justice Tottle awarded the First Plaintiff (son) 20% of the entire estate and the Second Plaintiff 35%. Most of this provision was made from the Deceased's father's share (15%) - the father, having survived his son, died before the matter was heard and from the Deceased's mother (15%), she being a resident of a nursing home and having no need for any funds.
In relation to the estrangement, he found that whilst the father had perhaps not been the best father, it was clear that his two children wanted nothing to do with him.
They had made no efforts to contact him for over twenty years from the time they became adults. There was no suggestion that the deceased had behaved badly towards them.
The generally accepted view is that estrangement does not preclude an award being made but that it serves to 'restrain the amplitude' of whatever award is made. In other words, the court will not err on the side of generosity in making provision but rather will perhaps award less than they otherwise would have.
The court will look into the reasons for the estrangement to see how the estrangement arose. Often it will be difficult to tell who is at fault.
The comments of Justice Tottle are paragraphs 57 to 62 of the judgment should be carefully considered.