The recent case of Bourke v Keep illustrates that estrangement from the deceased does not necessarily prevent a successful Family Provision claim. In this case, the claiming daughter had been estranged from her mother for 38 years after a falling out with her at the age of 20. The daughter was awarded $200,000 from an Estate worth approximately $690,000. A brief summary of the case is below.
Bourke v Keep [2011] NSWSC 88
Brief facts: The Plaintiff, the daughter of the deceased, brought a family provision claim regarding the Estate of the deceased. The daughter had had a falling out with the deceased at the age of 20 regarding the daughter’s decision to get married. The two had been estranged for approximately 38 years. In her will, the deceased wrote: “I have made no provision in this my Will for my daughter… because of her complete lack of concern or contact with me and other members of my family over a long period of time”. The deceased’s Estate was worth approximately $690,000.
Held: As the daughter of the deceased, the claimant was an “eligible person” as required in section 57(1)(c) of the Succession Act 2006 (NSW). The Court considered questions of whether the applicant had been left without adequate provision for her proper maintenance, education and advancement in life and then various factors in order to decide what provision ought to be made, including the financial circumstances of the Plaintiff. With respect to the 38 year estrangement, the Court found that clearly the Plaintiff and the deceased had mutually turned their back on their relationship.
The Court refered to, among other cases, the Court of Appeal in Ford v Simes [2009] NSWCA 351, quoting Bergin CJ who said: “…it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children… this is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”.
Justice Bergin acknowledged from previous cases however that if the estrangement from the testator is explicable, a claimant may still achieve an order for provision.
The Court found that although there was no state of hostility between the Plaintiff and the deceased there was a sense of a child treating her parent callously by not taking any steps to end their estrangement. The same could be said of her mother’s stringent refusal to make any attempt at reconciliation. At least two opportunities occurred when this could have happened. Because of the the mother’s refusal the Court found that the Plaintiff was not barred from making a claim. But the Plaintiff’s conduct meant that her moral claim on the testator’s estate was reduced.
The Court awarded the Plaintiff $200,000 from the deceased’s Estate.
This article is provided for your general knowledge and not to be read as legal advice.