Myth: Estrangement from the deceased will defeat your family provision claim

(Case Law Update as at 17 July 2025)

You may have had friend tell you they have cut someone out of their Will “because they don’t talk”, or you may have heard a family member say “they can’t contest the estate because mum hadn’t seen them in 20 years”.  It is a common misconception that a plaintiff must be in contact with the deceased at the date of their death in order to bring a claim for further provision.

This week Brereton J published his Decision in the matter of Robinson v Glennon [2025] NSWSC 770. The subject of the proceedings was the Estate of Mr Geoffrey Baxter. Mr Baxter died intestate, leaving his sister as the sole beneficiary of his Estate. Mr Baxter’s former spouse, Ms Kylie Robinson made a claim for provision for her maintenance, education or advancement in life pursuant to s 59 of the Succession Act 2006 (NSW). The net value of the estate was relatively small, $315,366.84.

The relationship between the deceased and Ms Robinson was fraught, spanning a decade and ending 4 months prior to the deceased’s date of death. The couple were described by family members as being in a ‘toxic’ relationship which was marred by domestic violence. The deceased and Ms Robinson were ‘on and off’, living together for periods of time and then separating. The deceased and Ms Robinson’s relationship became increasing violent, and each obtained apprehended violence orders against the other, which remained in place for a number of years until the deceased’s date of death.  Ms Robinson’s evidence was that the extent of the estrangement in 2024 was such that she did not know the deceased had passed away until some 6 months after his death.

Despite the estrangement between the pair in the month’s leading up to his death Brereton J ultimately awarded the whole of the estate to Ms Robinson. Paragraph [5] of the Decision includes the following commentary: While their relationship was marked by violence and periods of estrangement, Ms Robinson is the living person to whom Mr Baxter was closest over the last decade of his life. For many periods over that decade, she depended on him (mainly for accommodation), and he depended on her (mainly for domestic assistance). 

This case reflects a recent shift in judicial commentary which takes a more nuanced approach to the issue of estrangement. Bad behaviour by the testator, such as domestic violence resulting in estrangement, will be considered in the context of the testator’s moral obligation to provide for the plaintiff and may override the gravitas that would otherwise be given to the issue of estrangement.

This view has been enunciated in cases such as Valentini v Valentini [2014] VSC 91 and Baulch v State Trustees Limited [2008] VSC 22 where adult children of testators from whom they were estranged successfully made applications on the basis that the estrangement was the fault of their late parents, who respectively were alcoholics and verbally and physically abusive. Of note, in the matter of Valenti, Vickery J opined “… in the present case I find that the Deceased failed in his parental duty, and that his children were the victims of that failure. This places the conduct of the children towards their father, and their consequent estrangement, in a unique position and works in this case to very substantially mitigate the Applicants’ neglect of their father which might otherwise have been of greater weight in a consideration of their applications”. The moral obligation of parents to care for their children can continue after death, and testator’s may owe obligations to beneficiaries to make good on relationships which they failed to properly attend to and care for during their lifetime.

Our senior estate litigation lawyer, Winona Page, can assist beneficiaries, administrators, and executors when disputes arise over Wills and deceased estates.