Family relationships can be complicated, and whether it's due to longstanding conflict, emotional abuse, or differing values, some family members intentionally cut ties and become estranged. While you (or the other family member) may have severed the emotional bond, your legal obligations around estate planning remain intact.
The uncomfortable reality is that estranged family members may still have a legal claim to your estate, and without professional advice, simply excluding people from your will can result in more stress and cost for the rest of your family.
I understand the pain, frustration, and emotions involved in estrangement and work hard to help clients navigate how to meet their legal obligations with as little fallout as possible.
Estrangement doesn't mean exemption
It's a common misconception that if you haven't spoken to someone in years, they can't inherit your estate. In reality, if you die intestate (without a will) your assets will be distributed according to state legislation. In South Australia, regardless of the current state of your relationship, this legislation prioritises:
- Spouses and former spouses
- Domestic partners
- Children (including adult children)
- Step-children and grandchildren (in certain circumstances)
- Anyone who was being maintained by the deceased at the time of their death
Can you disinherit an estranged relative?
While you are free to leave your estate to whomever you choose, simply omitting someone from your will due to estrangement may not result in the outcome you anticipate.
Estranged family members may still challenge your will if they qualify as eligible under the Succession Act and won't protect your preferred beneficiaries from a potential legal challenge.
The court will consider several factors when assessing a claim:
- The nature and extent of the estrangement
- Any obligations or responsibilities owed by the deceased to the claimant
- The claimant's financial needs and circumstances
- The size and nature of the estate
- Any contributions made by the claimant to the deceased's welfare or estate
How to reduce the risk of a challenge
If you are estranged from a family member and do not want them to inherit, it's essential to take legally sound, proactive steps:
- Create a detailed and up-to-date will with help from a legal professional.
- Include a written statement explaining the estrangement and why no provision was made.
- Consider alternative financial structures that may offer more protection.
- Minimise the size of the estate by gifting assets during your lifetime or using joint ownership strategies.
Seek legal advice to protect yourself and the people you love
Estrangement does not automatically revoke someone's right to make a claim against an estate. Clear documentation, expert advice, and ongoing review of your estate plan are key.
The Succession Act 2023 (SA) reinforces the importance of planning your estate carefully, especially if your family relationships are complex.