A Sydney mother cut her children out of a share of a $2 million inheritance after a bitter marriage breakdown caused a deep rift in the family. They fought back in court.
The NSW Supreme Court decision shines a light on how judges resolve claims for a share of a parent’s estate where there has been a long estrangement between the parties.
The family matriarch died in 2023, aged 69. She left her entire estate to a niece in a will dated 2002. By the time of her death, she had been estranged from her children for 20 years.
In a note scrawled more than a decade after her will, she said that “spite or resentment” had motivated her to deny them an inheritance. She believed they had chosen their father over her.
As at the court case, the estimated value of her estate, deducting legal costs, was $2.4 million.
The mother left the marital home permanently in 2001 when her children – a son, the eldest of the trio, and two daughters – were aged in their teens and 20s. At the time, her youngest child was in her HSC year.
‘They continue to suffer emotional pain as collateral damage in their parents’ war.’
NSW Supreme Court Justice Geoff Lindsay on the trio of children at the centre of the case.
She had been absent repeatedly before then, the court heard, and the children later learnt she had had an affair. One of the woman’s nieces, whom she regarded as akin to a daughter, lived with her from 2000 because her own mother was unwell.
Supreme Court Justice Geoff Lindsay said the children were traumatised by their parents’ separation.
“With the passing of time, and maturity, they cast no blame on either of their parents for the breakdown of the parents’ marriage, though they continue to suffer emotional pain as collateral damage in their parents’ war,” Lindsay said.
He said the mother failed to recognise the “psychological damage suffered by her children, imagining them living in an idyllic environment after her departure, with golden prospects”. The will was made when she was embroiled in a bitter fight with their father.
Any failure by the children to reconcile with their mother was “matched by an equal and opposite failure on her part”, the judge said, notwithstanding the occasional card and gift from her. He said the mother effectively replaced the children with her niece in her affections.
The children each sought a family provision order, which is a way for current or former dependants of a deceased to seek a larger share of an estate if inadequate provision was made for them in a will. All three were tertiary educated and in white-collar jobs but one was in poor health, the court heard.
While the intentions of a deceased must generally be respected, the judge was satisfied that the mother had made inadequate provision for her children.
Her rejection of them “persisted beyond the grave”, Lindsay said, and family trauma had affected them in ways that were difficult to quantify in financial terms.
He made orders for the two elder siblings to receive $200,000 from the estate, while their younger sister, in greater need, received $350,000. The niece –who had helped care for her aunt – received the balance of the estate, totalling about $1.6 million.
Estrangement ‘not an automatic bar’
Mary-Ann de Mestre, principal of Sydney law firm M de Mestre Lawyers and a succession law expert at Macquarie University, said the decision confirmed that “estrangement is not an automatic bar to a [family provision] claim”.
This was particularly so “where the breakdown in the relationship stemmed from a bitter marital separation and the children were effectively ‘collateral damage’ of their parents’ conflict”, she said.
“The judgment stresses that courts must still respect … [the will-maker’s] freedom, but estrangement has to be examined in context including who caused it, whether reconciliation was realistically possible, and the emotional impact on the children,” de Mestre said.
‘Not a complete victory’
HWL Ebsworth partner Guy Moloney, who specialises in complex estate litigation and estate planning matters, said that “what’s interesting about this decision is that the children succeeded despite not necessarily being in financial hardship”.
“The court focused heavily on the fact that they were collateral damage from their parents’ divorce and on the long-term emotional consequences of their mother’s rejection of them,” Moloney said.
“It was also not a complete victory for the children. Justice Lindsay gave significant weight to the niece’s position as a surrogate daughter and long-term carer.”
Moloney said the decision was “a reminder that estrangement is not necessarily fatal to a claim, but nor does it erase the claims of those who actually stood by the deceased in life”.
The case confirmed “the ‘moral tale’ at the heart” of NSW succession laws, he said.
“A person is free to leave their estate to whomever they choose, even where there has been a long and bitter estrangement from their children.
“But if those children are eligible family provision claimants, the court can still intervene.”
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