The recent decision of the New South Wales Supreme Court of Kitteridge v Kitteridge [2022] NSWSC 193 provides a useful summary of the considerations of the Court when dealing with a claim by a child who was estranged from their parent before the parent’s death.

The case involved a family provision claim by the adult son of the deceased (Lee) who contested a will made in 2017 in which the deceased left almost the entire estate to the youngest son and executor, and nothing to the deceased’s two older sons. Importantly, a clause in the deceased’s will stated that she made no provision for her older two sons as they “refused to have any contact with me for many years”.

The deceased made 7 wills in her lifetime with a statement made explaining the will each time. Consistently throughout the deceased’s wills and statements were references to Lee and the fact the deceased felt he had abandoned her in favour of his wife and wife’s family.

The estrangement began after the deceased and her ex-husband, Lee’s father, separated and eventually divorced. The deceased’s ex-husband moved into Lee’s home and resided with him for many years, with Lee and his father being in close relationship. The Court found that the deceased identified Lee with her own ill-feeling towards her ex-husband and resented that Lee took him in after their divorce. The relationship between Lee and the deceased further deteriorated during a family provision claim by the deceased against her parents estates in which Lee was a witness for the estate against his mother. Subsequently, all contact between the deceased and Lee stopped with the deceased not meeting Lee’s children as they were born. Conversely, the relationship between the deceased and her youngest son was very close and one that was maintained after the separation of the deceased and her husband.

Lee and his wife were approaching retirement age at the time of the decision and owned no property between them. Lee hoped to use money from the deceased’s estate to finance a purchase of a residential home for he and his wife as well as for their two sons and grandchild. The youngest son of the deceased and his wife owned a property and resided in the deceased’s home in Lane Cove and hoped to receive the property and continue residing there. The deceased’s estate consisted of the Lane Cove property as well as a sum of cash. The total estimated value was of roughly $2,500,000.

The Court found that significant respect should be had for the clear intention of the deceased as evidenced in her will and accompanying statements. However, those intentions should not render the Court unable to exercise its discretion and order further provision. Instead, the Court must determine whether adequate and proper provision had been made for the claimant.

Relevantly, the deceased had a moral duty to provide for Lee as his mother. This moral duty arises out of the community standard that parents are to care and assist their children if they are in need. However, the estrangement between children and their parents may, depending on the circumstances, erode this moral duty.

In this case, the Court found that the estrangement between Lee and the deceased arose out the separation between the deceased and Lee’s father, where Lee was put in an impossible situation by the deceased to choose either his father, or his mother. Therefore, the estrangement seemed to be provoked by the deceased and not Lee, and so the moral duty continued to be owed to Lee by the deceased.

As a result, and due to the substantial size of the estate, the Court ordered that an amount of $460,000 was awarded to Lee with the residue of the estate going to the youngest son of the deceased.

This case shows that there is a real obligation for parents to provide for their children out of their estate despite an apparent estrangement. It shows the Court are reluctant to completely exclude a child from provision, particularly if the estate is of a substantial size. There may be circumstances where the Court upholds the cutting off a child if the estrangement is one that is initiated and maintained solely by the child. However, in most other circumstances, provision will be made.

The recent decision of Kitteridge v Kitteridge shows how important it is to discuss your estate planning needs with a solicitor, ensuring your estate divulges according to your wishes. Further, if you have not been adequately provided for from the estate of a loved one, you may well have a claim for further provision.

Contact our experienced estate team at The Law Office of Conrad Curry on (02) 4050 0330 to discuss further.