It is an unfortunate fact of life that family relationships break down – and as a result, the aggrieved family member may alter their Will to remove the other family member as a beneficiary, or only leave them with a nominal gift – even if it is their child. Whilst it is every person’s right to prepare a Will which reflects their wishes, the excluded person may have the right to make a family provision claim for an entitlement under the Will.
In a recent family provision case (Smith v Smith  NSWSC 1077), the Supreme Court of New South Wales held that 2 of the deceased’s adult children were entitled to grants of $90,000 and $100,000 (when their initial grants under the Will were $30,000 each).
The circumstances of this particular case were as follows:
- the deceased had 3 adult children – two sons and a daughter;
- the first son had been estranged from his father for approximately 7 years, although over that time, the son had sent approximately 10-15 text messages to his father, but with no response;
- the daughter had been estranged from her father for approximately 19 years, although over that time, she had made some attempts to contact her father, but with no success;
- the second son had a close relationship with the father, caring for him in the last few weeks of his life before he passed away from bowel cancer;
- in his Will, the father left a bequest of $30,000 to his first son, a bequest of $30,000 to his daughter, some other bequests to grand-children, with the balance of the Estate to be gifted to his second son.
After hearing evidence from all parties regarding the difficulties of their relationship with their father, their current financial circumstances, their future financial needs, and the size of the Estate, the Court noted that the breakdown in the relationship was highly likely due to the deceased’s difficulty personality, noting that the children’s limited attempts to contact their father were unsuccessful. The Court also noted that there was no demonstration by the children of ill-temper or violence towards their father.
Noting the children’s various financial needs, the Court increased the grants to $90,000 and $100,000 respectively (from the initial grants of $30,000).
Interestingly, the Court’s reported decision made reference to a number of comments made by various Judges over the years as to what is an appropriate provision:
Minds may legitimately differ as to the provision that should be made … [W]hat is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight: Grey v Harrison  2 VR 359 per Callaway JA at 366-367
… an intuitive assessment: Kay v Archbold  NSWSC 254 per White J at 126
As to what is an appropriate provision can only be determined on a case by case basis, taking into account all relevant facts and circumstances.
Please contact Shire Legal if you have any questions about drafting a Will to exclude certain family members, or questions about making a family provision claim.
An earlier blog by Shire Legal in relation to family provision claims can be seen here.