Estranged family members pose an interesting conundrum when it comes to wills and the challenging of decisions made within them. Wills are sometimes used as the last strike – a weapon that can damage another person’s life ongoing. You may need a family provision claim.
When people are left out of another’s will, it can cause a lot of grievances. For this reason, wills can be challenged, and a court will decide, with a number of matters taken into account by the courts.
Estrangement is a complex thing, with the emotional and human elements of estrangement taken into consideration. It isn’t just a matter of the end of the duty to care for that person or maintain a relationship with them; it is not that simple. Each case is taken on its own merits.
Forgiveness has been largely the order of the day by judges, despite in some cases, hostility in life between the estranged parties, since this hostility doesn’t terminate an obligation between the parties for provision. For example, a parent and child, where the parent dies without leaving anything for the child in the will.
When the child of the deceased is excluded from a will
If a child has been morally undeserving, callous or hostile, such behaviour may be considered by the courts as warranting the exclusion from the will. Not everyone deserves to be provided for if their behaviour bad enough. The courts don’t allow for this injustice either. Naturally if the child is under 18, different rules apply, but adult children are considered old enough to monitor their own behaviour.
One case describes children who treat their parents callously, by withholding – without justification – their support and love for their parents as they aged. Hostility on top of this was also very poorly regarded.
When a deceased parent is unreasonable or unforgiving
The whole circumstance of estrangement is considered, in particular the behaviour of the two parties. If the deceased lacked the capacity of reasonableness or forgiveness when it came to a dispute, the courts may find a provision for the claimant.
When the applicant caused the estrangement
When it is obvious whose fault an estrangement is, and this is the claimant, the conduct that caused the issues will be evaluated. Misconduct by the applicant does not mean they cannot be provided for, but an amount may be reduced depending on the issues.
For example, a child with drug dependencies that caused a major rift with the deceased may have a reduced benefit or conditions applied.
Need to know what your legal position is?
Contact Vanessa Ash