Family Provision Claims By Adult Children – Estrangement

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Keep v Bourke [2012] NSWCA 64


Family Provision ClaimThe impact of estrangement on family provision claims was exhibited in Keep v Burke [2010] NSWCA 64, in which the Court of Appeal examined the nature of the estrangement and the reasons underpinning the estrangement between the respondent and the deceased.



The breakdown of the relationship between Marion Burke (“the respondent) and Joyce Keep (“the deceased”) occurred in 1971 when the respondent became engaged at the age of 20 against her parent’s wishes. The wedding invitation sent to the deceased was returned to the respondent with a note to the effect that she wished to have nothing more to do with her. Between 1971 and 2009 the respondent saw the deceased on five occasions.  The deceased made her last Will on 7 July 1997 and left no provision in the Will for the respondent. The deceased died on 29 August 2009.



At first instance the primary judge considered the nature of the estrangement and held that Marion had been left without adequate provision for her maintenance and advancement in life. Accordingly, Marion was awarded a legacy of $200,000 out of the estate of the deceased.



On appeal, the Court examined the length of the estrangement and the roles played by both parties to the estrangement and found that Marion and the deceased had both contributed to the estrangement. However, the Court held that Marion was not faultless in the matter of the estrangement and that her conduct was such that the provision made for Marion in the sum of $200,000 was reduced to $175,000 accordingly.



This case demonstrates that estrangement is a factor that the Court will take into consideration when making an order for provision.


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Family Provision ClaimBefore you make your Will you should discuss with a Lawyer the possibility of a claim being made against your estate. This will arise in cases such as: second marriage, children being omitted from your Will etc. Your Will can be drafted to minimise the possibility of a claim. You can keep notes with your Will to explain the reasons why you have made your Will in that way. For further advice and assistance in relation to a Family Provision claim please contact us on 0283 154 036.

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