Criminal Lawyer | Warrnambool, South Morang & Melbourne
Many adult children live apart from a parent for years without contact. Some separations result from conflict, others grow slowly and are never discussed. If a parent later dies and their will leaves little or nothing to that child, the question is simple: can an estranged child still make a claim on the estate in New South Wales?
In NSW, the answer is yes. Estranged children are not automatically excluded from family provision relief. The Supreme Court can make an order for further provision if the will, or the intestacy rules, did not make adequate provision for the child’s proper maintenance, education, or advancement in life.
The Court looks closely at the reasons for estrangement, the child’s financial need, and whether the deceased had a moral duty to provide. Claims generally must be started within 12 months of the date of death.
This guide explains how courts approach estranged children’s family provision claims, which facts matter, and how timing and evidence can make the difference.
Who can contest a will in NSW?
Under section 57, a “child of the deceased person” is an eligible person. This includes adult children and adopted children. It does not matter that the child is independent or lives overseas. If you are the deceased’s child, you have standing to apply.
Estranged children family provision claims: the legal test
The Court does not re-write wills to achieve fairness in a general sense. It applies a statutory test. Section 59 allows an order only if the applicant is an eligible person and the will (or intestacy) failed to make adequate provision for proper maintenance, education, or advancement. Section 60 lists factors the Court may consider, including:
- The nature of the relationship
- Competing claims on the estate
- Size of the estate
- Applicant’s financial resources and needs
- Any disability
- Other relevant matters the Court considers
In practice, the Court asks two broad questions:
- Has the applicant failed to receive adequate provision for proper maintenance, education, or advancement?
- If so, what order should be made, having regard to all circumstances, including community standards and moral obligations?
Reasons for estrangement: why they matter
Estrangement is a factor, not a rule. Courts look at why the relationship broke down and who bears responsibility:
- The deceased’s conduct (violence, abuse, neglect, or rejection) drove the estrangement
- The child’s conduct caused and maintained the distance without reasonable cause
- Both sides contributed over time
Section 60(2) directs the Court to consider the relationship and any relevant conduct. Where the estrangement is explained by the deceased’s behaviour, or the child tried to reconcile, the weight against provision may be reduced. If the estrangement was voluntary and maintained by the child without cause, it can weigh heavily against provision, especially in modest estates with competing claims.
NSW appellate decisions illustrate both outcomes:
- Andrew v Andrew [2012] NSWCA 308 – long estrangement but modest provision granted
- Burke v Burke [2015] NSWCA 195 – claim refused where estrangement was self-imposed
Financial need and competing claims
“Need” is central. Section 60(2)(d) requires the Court to weigh financial resources and needs, present and future. Evidence may include:
- Income, savings, superannuation, debts
- Housing situation, rent or mortgage
- Medical issues and care expenses
- Employment prospects or retraining
The Court also considers estate size and competing needs of other beneficiaries. Large estates can support awards even with friction; small estates with strong competing claims may justify modest or no award.
Moral duty, community standards and estrangement
Courts consider the deceased’s moral duty to an eligible person. This guides whether adequate provision has been made. Cases show a spectrum:
- Long estrangement, no need, responsibility on the child → no order
- Long estrangement, compelling need, limited responsibility on the child → modest provision
Claim deadlines and the NSW process
Applications must be filed within 12 months of death. The Court may extend time if there is sufficient cause or all parties consent (section 58(2)).
Typical steps and documents
- Get advice and check the deadline
- Gather evidence (relationship history, estrangement reasons, reconciliation attempts, financial need, health, what you seek)
- File and serve the claim
- Exchange affidavits
- Mediation – most claims settle here
- Hearing – if not settled, the Court delivers orders
Evidence checklist for estranged children
- Relationship history, periods of contact and no contact
- Reasons for estrangement (letters, emails, medical/police records, witness statements)
- Reconciliation attempts
- Financial need (payslips, bank statements, tax returns, superannuation, debts, mortgage/rent, medical reports)
- Housing and health needs, future expenses, dependents
How estates defend estranged children claims
- Applicant’s need is not significant or can be met by own resources/partner
- Estrangement caused and maintained by the applicant → lower moral duty
- Other beneficiaries have stronger claims
- Estate is small or assets hard to recover
Practical tips for estranged children contesting a will
1) Check eligibility and act within time
Confirm eligibility under section 57 and note the 12-month deadline under section 58(2).
2) Be frank about the relationship
Explain estrangement reasons clearly. Provide supporting evidence. Acknowledge your contribution if relevant.
3) Prove financial need with detail
Provide a complete budget with supporting documents: living costs, debts, future expenses, bank/ATO/super/medical records.
4) Prepare for mediation
Most claims settle at mediation (SC Eq 7). Consider settlement ranges reflecting needs, estate size, and hearing risks.
5) Mind estate size and costs
Proportionality matters. Smaller estates may have legal costs capped or adjusted to keep the process just, quick, and cheap.
How M de Mestre Lawyers Can Help
Estranged children family provision claims are complex but not hopeless. Estrangement alone does not decide the case. NSW courts consider reasons for estrangement, financial need, estate size, and moral duty. Early advice improves options and helps meet claim deadlines.
Contact M de Mestre Lawyers on 0401 513 190 or [email protected] for a confidential case assessment.
Frequently Asked Questions (FAQs)
Can an adult child be left out and still succeed?
Yes. An estranged adult child can succeed if the will failed to make adequate provision and facts support a moral duty to provide.
Does a “no-contest” clause stop me?
No. The Court decides based on sections 59 and 60; eligible persons can bring a claim regardless of a “no-contest” clause.
What if the estate has been distributed?
It is harder, but the Court can deal with distributed or notional property. Delays increase risk, so start early.
What if I miss the 12-month deadline?
You can request leave to proceed out of time by showing sufficient cause. Success is not guaranteed.
