The recent Court of Appeal decision in Burke v Burke provides further commentary and clarification in relation to how estrangement will affect the Court's determination of family provision proceedings brought by adult children of deceased persons.


The deceased was the elderly mother of three adult children in their 60s. One of the adult children ('Terry') had not spoken with the deceased for approximately 20 years prior to her death, following an incident which took place at Ashfield Bowling Club ('the Incident'). About two years prior to the death of the deceased, in 2010 she wrote a letter which stated she had not made provision for Terry in her will (executed in 2003), as a result of his decision to be estranged from the family.

The deceased's will bequeathed a legacy of $100,000 to Terry's son, with the residuary estate to be split equally between the deceased's other two children. The net value of the estate was approximately $1,250,000 after legal costs and payment of the legacy to Terry's son.

At the time of commencing proceedings for a family provision order out of the deceased's estate, Terry was in financial need, and was discharged from bankruptcy shortly after commencing the proceedings. Terry's financial need was not in dispute.

The question for the Court (at trial and on appeal) was whether Terry's estrangement from his mother in the 20 years prior to her death precluded the Court from making an order for provision from her estate.


At first instance, it was found the deceased was entitled to regard Terry as a person undeserving of a benefit under the Estate, regardless of his financial circumstances. This was based on evidence which demonstrated Terry had decided he wanted nothing to do with the family. Having regard to prior authority, his Honour concluded at [57]:

"In my view, the deceased was entitled, notwithstanding the fact that the plaintiff was her son, to regard him as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of his application...notwithstanding the poor financial circumstances and taking all matters favourable to him into account including the size of the estate I think no provision ought to be made out of the estate for him."

Terry appealed the decision on the following bases:

  1. The primary judge wrongly attributed little significance to the incident at the Ashfield Bowling Club, which Terry contended was the material cause of estrangement;
  2. The estrangement was due to a misunderstanding for which both he and his mother were jointly responsible;
  3. Terry had attempted a reconciliation with his mother in recent years;
  4. In those circumstances, "having regard to the size of the estate and the relatively comfortable position of his siblings, absent callousness or hostility on his part the deceased was under a duty to make provision for him and there should have been both a finding that inadequate provision had been made for him in the will and an order for provision for him out of the estate" (Ward JA at [13]); and
  5. The decision of the primary judge that no provision should have been made for Terry does not reflect current community attitudes and values, amounting to an error requiring appellate intervention.

Particularly, Terry relied on previous authority that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirements under the Act, and a state of estrangements or even hostility between a testator and a claimant does not terminate the obligation of the testator to provide for the claimant. His Honour considered the case of Andrew v Andrew [2012] NSWCA 308. That decision rejected the notion the Court should start with the principle that a testator is free to provide nothing for an adult child. However, his Honour did not accept that Andrew stood for the proposition that all that is required, for an adult child to have a provision made in his/her favour, is to prove the relationship and the fact of the need for financial assistance.

The amount sought by Terry on appeal was provision of $300,000, which constituted about ¾ of the residuary shares that the other two adult children would then receive if the order were made, with no suggestion any provision be made out of his son's legacy.


There was no real dispute that Terry satisfied the first 2 limbs of the Succession Act. That is:

  1. Terry was an eligible person (section 59(1)(a)); and
  2. Adequate provision for the proper maintenance, education or advancement in life had not been made to Terry (section 59(1)(c)).

Under the third limb, the Court is to consider whether to make a family provision order and, if so, the nature of any such order. The matters which the Court may take into consideration for this purpose include (among others):

  1. Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship (section 60(2)(a));
  2. Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person (section 60(2)(j));
  3. The character and conduct of the applicant before and after the date of death of the deceased person (section 60(2)(m)); and
  4. Any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered (section 60(2)(p)).


The Court of Appeal dismissed the appeal and held, relevantly, that there is no rule or principle that in cases of significant need there is an obligation to make provision for an adult child irrespective of any estrangement expect in circumstances of hostility or callousness:

"... The proposition contended for by Terry, in effect, is that in cases of significant need there is an obligation to make provision for an adult son, irrespective of any estrangement except in cases of hostility or callousness. That, in my opinion, wrongly seeks to elevate statements made in particular cases (to the effect that ordinary estrangement will not preclude an application for provision succeeding on the facts of the particular case) to some form of overriding rule or principle." (at [94]).

Additionally, the judges on appeal held:

  1. The assessment of the primary judge as to the significance of the Ashfield Bowling Club incident was not in error;
  2. Terry's phone calls to the nursing home were not indicative of an attempt at reconciliation, and that the evidence did not contradict that his contact was motivated by enquiries as to inheritance;
  3. Estrangement will not be a determinative factor against the making of a provision for an adult child; it is a factor to be taken into account; and
  4. The primary judge's assessment in all the circumstances was not so out of balance with community expectations to equate to an error.

Interestingly, the Court of Appeal noted that, had it been persuaded that making no provision was inadequate in all the circumstances, any provision which would have been appropriate would not have been sufficient to allow Terry to own his own home, but would rather be a buffer to assist in his day to day life.

In respect of the concept of "community expectations", the Court referred to Andrew, which noted "the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case." (at [36]). Emmett JA noted section 60(2) of the Succession Act is broad, such as to leave a very wide discretion for the Court. His Honour suggested it may be preferable for the legislation to be more specific.


Whilst estrangement is not fatal to an application for family provision, it is a relevant matter for the purposes of section 60 of the Act and must be considered on a case-by-case basis.

The decision makes it clear that each family provision case is separate and unique, and facts from one cannot be applied to another. Particularly, there is likely to be a broad spectrum of community opinion on asset division upon the death of a parent, however the Courts will look to legislation as a guide in this regard.