LawTalk Blog

Can my estranged daughter claim anything from my estate?

claiming against a deceased estate

Scenario

Deidre (a widow) has made a Will which leaves the grand sum of $1.00 to her daughter Belinda and all her other assets to her son Roger, with whom she has a close relationship.

Her other assets comprise the sum of $5,000 in a savings account, her modest one bedroom unit and her cat named "Garfield".

Deidre explains to her lawyer when making her Will that she has had no contact and no relationship with Belinda for 12 years but that Belinda then started showing up at her home in the last six months with her boyfriend Pete.

She explains that Belinda became verbally abusive towards her when she found a copy of the Will one day and feels Belinda deserves nothing from her estate when she dies.

Belinda was later made subject to an Intervention Order restraining her from making any contact with Deidre.

Deidre then dies and Belinda receives a letter from Deidre's lawyer enclosing a cheque for $1.00.

Can Belinda make a claim for more assets from Deidre's estate?

In order for someone to bring a claim under the Inheritance (Family Provision) Act 1972 (the Act) they must fall within a certain category of persons. These include:

  • A spouse of the deceased person;
  • A person who has been divorced from the deceased person;
  • The domestic partner of the deceased person;
  • A child of the deceased person;
  • A child of a spouse or domestic partner of the deceased person who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
  • A child of the child of the deceased person;
  • A parent of the deceased person who satisfies the Court that he cared for, or contributed to, the maintenance of, the deceased person during his lifetime;
  • A brother or sister of the deceased person who satisfies the Court that he cared for, or contributed to, the maintenance of, the deceased person during his lifetime.

Any of the above persons have an opportunity to bring a claim under the Act. Therefore, in Belinda's case, the short answer is 'yes' she is entitled to bring a claim. However, this does not necessarily mean that Belinda will succeed.

In considering Belinda's application, the Court will ordinarily undertake the the High Court test in the case of Singer v Berghouse (later confirmed in the case of Vigolo v Bostin) which is a two-stage process. Essentially, the Court will ask itself:

  1. Whether Belinda has been left without adequate provision for her proper maintenance, education and advancement in life;
  2. If the answer to the above is 'yes', then the Court will consider what provision ought to be made out of the estate for her.

In assessing what provision should be made to Belinda, the Court will look at her financial position, the size and nature of Deidre's estate, Belinda's relationship with Deidre as a whole and the relationship between Deidre and other persons who have legitimate claims upon Deidre's estate (that is, in this case, Roger).

In Belinda's case, the Court will also consider section 7(3) of the Act which states:

'The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.'

Therefore, the Court will consider whether Belinda should receive any provision at all because of her verbal abuse of Deidre in the months before her death.

Given the estranged relationship, the abuse, the small size of the estate and Deidre having a comparatively good relationship with Roger, it is unlikely that the Court would make an Order for provision to be made to Belinda out of the estate.

Let's now assume the factual circumstances were different

Belinda had a good relationship with Deidre up until 6 months before her death. Belinda then takes her new boyfriend Pete around to Deidre's house. Deidre is less impressed by Pete's tattoos and face piercings than Belinda is and an argument erupts over the phone a short time later. Deidre then goes to see her lawyer to change her Will to leave Belinda $1.00 whereas she had previously been due to receive one half of the estate.

"A word of caution: avoid the temptation to make a new Will whilst angry or in a heightened emotional state."

In this scenario, assuming that Belinda was not wealthy and could establish some financial need, she would likely succeed in provision being made to her from the estate in such amount as the Court sees fit. Moreover, contrary to popular misconception, the $1.00 left to Belinda in the Will, would not negate Belinda's right to bring a claim.

A word of caution: avoid the temptation to make a new Will whilst angry or in a heightened emotional state.

Otherwise, feel free to speak directly with today's blog writer, Senior Assoicate in Wills & Estate Planning, Errol Kaplan.


Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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