What to do about the daughter who has not spoken to you for a decade? You are with your solicitor giving instructions on how you wish to leave your worldly goods on your death. The upset at the breakdown of the relationship with your daughter re-emerges and you decide she does not deserve anything in your will. Your loving spouse and attentive sons will be the beneficiaries.
What is to happen? You can expect your solicitor to say that it would be very unwise to ignore the estranged daughter in your will. Do you accept this advice or stay with your view that she is not deserving?
Estrangement
Where the estrangement has arisen because the daughter has chosen to cut off ties, the testator’s ( ie the parent’s) moral duty to provide for her does not abate, nor where the estrangement is the handiwork of both the deceased parent and the daughter. In such circumstances, the decisions of the court show reduced provision, that is, a lesser amount of provision than might have been awarded were the relationship warm and loving.
Of course, the critical consideration for the court is the need of the applicant. Need determines whether adequate provision has been made.
Pertinent to the court’s consideration are the causes of estrangement. Where it is the testator, for example because of disapproval of the lifestyle of the aforementioned estranged daughter, causes the estrangement and excludes the daughter from benefiting under the will, the merits of the daughter’s claim for provision may not be adversely affected by the estrangement. Where the daughter’s attempts at reconciliation have been rebuffed, the claim is likely to be judged only on the strength of her need.
Where the estrangement has come about because the daughter has chosen to cut off ties, the testator’s moral claim does not abate, nor where the estrangement is a handiwork of both the deceased and the daughter. In such circumstance the decisions of the court show reduced provision, that is, a lesser amount of provision than might have been awarded were the relationship warm and loving.
Overt hostility is a significant feature in estrangement cases. Again, depending on which party has been the aggressor or where the hostility has flowed both ways, the amount of provision the court will award may be further reduced because of the hostility. Yet there are cases where the hostility has been overlooked. This is a reminder that an award in a family provision claim is always at the discretion of the court. There are no scales or hard and fast rules by which to measure an award of provision.
Finally, allegations of sexual abuse by the deceased, whether against the estranged claimant daughter or another person, feature in estrangement cases, sometimes designed to improve the magnitude of the claimant’s provision. It is very difficult for the court to determine the veracity of such allegations. The cases demonstrate a range of findings, i.e. the court’s inability to make a finding on the particular issue, or a finding that the allegations are unproven or that they are irrelevant.
The primary consideration for the court is the degree or magnitude of the need. Estrangement, if it exists, will then be factored into the determination of what will be adequate provision.
In conclusion, you as a prudent testator should put aside the hurt of estrangement and make provision for the estranged family member, that estranged daughter.
Family Provision Claim
Doing so will likely save your estate from being embroiled in litigation, that is facing a family provision claim, the cost of which will diminish your estate, which will reopen historic hurt, possibly causing further rift, and will delay the administration of the estate.
de Groots will help you work through your estate planning and advise on what might be an appropriate gift in your will to that estranged daughter. We urge you to talk through this difficult scenario with us. Do not avoid the hard decision.
By Elizabeth Lorimer – Special Counsel
Read More on:
The Importance of Regularly Reviewing Your Will
Estrangement and Family Provision Podcast
Connect with us on LinkedIn
