The Western Australian decision of Hill -v- Murray handed down in December 2023 reminds us yet again that estrangement from an adult child does not, by itself, prevent that child from successfully claiming against the estate of the estranged parent.
Summary of Case Facts
Claire was born in September 1983, the product of a relationship between her mother Kathleen and a formerly platonic friend, Alec.
Alec and Kathleen ceased contact when she told him of her pregnancy.
The following year, Kathleen brought a claim against Alec for child maintenance. Alec denied paternity. The maintenance application was not pursued.
Claire had no contact with Alec during her childhood.
In 2001, when Claire was aged 18, Kathleen recommenced the maintenance proceedings against Alec at Claire's request. Claire, a talented dancer, wanted funds to attend a ballet school in Germany.
Alec again denied paternity. After he declined a paternity test, the court ordered Alec to pay lump sum maintenance of $21,000. Alec complied.
During the maintenance proceedings, Alec and Claire sat in a room together for the first and only time. They did not speak to each other.
Claire did not take any steps to contact Alec after the maintenance proceedings finished. She was of the view that:
- Alec did not want a relationship with her;
- it was up to Alec to contact her if his position changed.
Alec died in 2016. At the time of the trial, his estate had a net value of around $3,200,000. His Will left his entire estate to Jennifer, his de-facto wife of 30 years.
Court Proceedings
Claire, who was married with two young children, brought a claim against Alec's estate.
Claire and her husband had combined incomes which exceeded their expenses. They were the owners of the home in which they lived and an investment property, both of which were heavily mortgaged.
Findings
The court concluded that responsibility for the estrangement rested with Alec alone. That responsibility did not alter when Claire became an adult. The presiding judge commented:
As the parent, and given his past actions, the responsibility for the lack of a relationship once Claire became an adult continued to lie with Alec. Even if I were to accept that Kathleen also played a role (which I do not) that would not result in Claire being responsible for the estrangement.
The court decided that:
- Alec's Will did not make adequate provision for the proper maintenance of Claire;
- as Alec's daughter, Claire had a moral claim to his estate;
- the estrangement was not Claire's fault and did not amount to disentitling conduct on her part;
- the moral claim Alec's de facto wife Jennifer had on the estate was greater than Claire's moral claim;
- Alec's estate was substantial and able to bear dispositions to both Claire and Jennifer.
Claire was awarded $1.1 million.
The issue of legal costs was deferred to a later time. Although not part of the case report, it is likely that in addition to paying the award to Claire, Alec's estate was also required to meet substantial legal costs associated with the court proceedings.
Takeaways
Don't assume that you have no duty to make provision in your Will for an estranged adult child.
As a matter of law, an adult child is an eligible person to bring a Family Provision Claim. A claim of that type also exposes the estate to liability for legal costs.
If you have an estranged child, it is important when making your Will to properly assess:
- the risk of a successful claim being made against your estate; and
- the cost consequences of such a claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.