Family dynamics can often be complicated, and where tensions are high a relationship between parent and child can dwindle to the extent it is non-existent. So, what happens when an estranged parent dies, and they do not name their child as a beneficiary in their will?
The short answer is that while it is possible to contest the will of an estranged parent, the child must have a valid legal reason for making a claim if they are to succeed in challenging the will, and not every estranged child will even qualify to make the challenge. Here’s why.
What is meant by the term ‘estrangement’?
Estrangement occurs when a child has not had any relationship with one or both of their parents for an extended period or periods of time.
The basis for the estrangement could be a one-off incident or the culmination of years or even decades of trauma spanning childhood to adulthood and may include cases of abuse, neglect or family violence.
Parents who are estranged from their children will often leave them out of their will.
How does the Court deal with estrangement?
The reason for the estrangement is paramount to challenging a will. The Court will take into consideration the events leading to the estrangement and what effect those events had on the relationship to cause it to break down. Whether the estrangement was a justifiable reaction to the events will also be taken into consideration, as will any attempts to repair the relationship by either party.
Events that have a particularly traumatic impact on a person can cause the dissolution of the relationship, foster poor decision-making and can sometimes even lead to further trauma, substance abuse issues and/or psychological disorders, which can, in turn, lead to further estrangement. If the applicant has suffered because of a serious breach of parental duty, the Court will often look more lightly on any improper conduct carried out by them towards the deceased.
The Court will also consider what a 'wise and just testator' would have provided in their will for their child, as opposed to an estranged parent who may feel scorned by the lack of relationship with their child.
How can I contest the will of my estranged parent?
Challenging a will can be difficult and the assistance of an experienced estate litigation lawyer is required.
It will first need to be established that the child is an eligible person to contest the will and they will then need to be able to establish a case for why they were estranged from their parent and why their exclusion from the will is unjust.
What can I do if my estranged parent bequeaths me a nominal amount?
Some lawyers will advise that estranged parents bequeath their child a nominal amount in their will, accompanied by a reason for why the child is not entitled to a larger portion of their estate. Depending on the circumstances, this tactic may prevent children who simply chose not to have a relationship with their parents from accessing their assets, but is not as strong in cases where the breach of parental duty occurred.
Are there time limits involved with contesting a will?
Yes. In Queensland, there is just 6 months from the deceased’s death to make it known to the Executor that you intend to contest the will. This is because, after 6 months, the executor may commence distributing the estate. The deadline for commencing proceedings is 9 months from the date of the deceased’s passing. Under special circumstances, the Court may still allow a will to be contested.
If you wish to contest the will of an estranged parent it is recommended that you seek the advice of an experienced estate lawyer who can help you to build your case and navigate a complex area of the law, which can often be fraught with emotion.