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Left out? Challenging a Will

By Terri Gough - 5 Apr 2019

Accompanying the increase in blended families is a corresponding increase in claims by children against the deceased estate of a parent who entered a new relationship. Acrimonious divorces and de facto separations sometimes leave children of the relationship estranged from one parent. This in turn can sometimes result in the children being disinherited in favour of the estranged parent's new partner and family.

In Cartwright v Joseph the High Court determined the claim by two daughters against their father's estate. Through no fault of their own, the daughters had become estranged from their father following an acrimonious divorce that occurred decades earlier. The father left his entire multi-million estate to his subsequent de facto partner of many years.

The daughters brought their claim under the Family Protection Act. This Act empowers the court to make provision from an estate in favour of certain family members where the deceased failed to make adequate provision for those family members' proper maintenance and support.

The court's enquiry is twofold: Firstly, as to 'maintenance', that is, the claimant's financial needs. Secondly, as to 'support' which focusses on non-financial considerations, for instance, relations within the family.

Cartwright is interesting because the daughters had no financial need, which meant that their claim focused solely on their father's failure to provide 'support' to them. The Court said:

In terms of economic support, I accept [the deceased] all but completely failed to provide his daughters with economic support during their childhood. Any financial comfort [the claimant daughters] now enjoy is largely due to their own efforts. No credit of any kind may be given to [the deceased] for the fact that both his daughters have succeeded despite such trying and avoidable circumstances.  However, I consider this factor goes to an assessment of the magnitude of his emotional failure; it is a component of his failure to recognise and treat them as members of his family rather than a separate failure to provide appropriate economic support in his will.

Having determined that the deceased breached his 'moral duty' to his daughters, the court proceeded to consider what award was sufficient to remedy that breach.

The daughters sought 15% each from an estate of a little under $4 million. The court considered that to be at the high end for claims of this type and that an award closer to 10% would be sufficient to remedy the breach.

The estate asset largely comprised rural land which provided an income and home for the deceased's widowed partner. To balance the needs of all parties, the court made provisional orders that some of the land be subdivided off and sold in order to meet the claimants' award of approximately 10% of the estate each.

Martelli McKegg specialises in deceased estate and trust litigation. If you believe you have not been treated as expected in relation to an estate or a trust, then contact one of our team and we will be able to indicate the options that may be open to you.


Terri Gough


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