Claims on death by estranged children

Author:Mrs Penny Henderson
Profession:Cavell Leitch

Relationships (Family)

Often we are contacted after the death of a parent to see whether they should make a claim against their parent's estate. They may be unhappy with the size of the provision for them, or may have been excluded completely. Equally we have faced questions from parents who want to leave a child out of their will. This may be for "bad behaviour" or estrangement.

Waine v Tigg is a recent High Court case that is a good example of both the obligation to recognise children, and the effects of estrangement on any entitlement.

Briefly, the deceased, Mr Parker, had died leaving his entire estate of approximately $643,000 to his two nephews. He had previously been married in England, but left his wife and children aged 4 and 8 in 1968, and England in 1969. He did not have contact with the children for 45 years. He did not provide funds to their mother, either spousal maintenance or child support. Their mother was totally reliant on benefits and family assistance from the point of separation.

From the 1990's the children tried to find their father. He was finally located but declined contact, he then changed his mind and there was some exchange of letters in 2014, although the Court found these showed a lack of interest on his part. The daughter finally found he had died after an internet search when she had not heard from him.

The Family Court had found that a "wise and just testator" in Mr Parker's position would have made provision for the children. He had been solely responsible for the estrangement, had not supported them financially or emotionally since they were young and they had suffered as a result. He had breached his moral duty in not providing for them.

After considering the relative positions of both he awarded the daughter $100,000 and the son $175,000. The balance of the...

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