This largely depends on whether the person who died had a legally valid Will in place at the time of their death. If they did not make a Will, then their estranged child may be entitled to inherit from them under inheritance laws called the Rules of Intestacy.
Even if the deceased did leave a Will, it is sometimes possible for certain people to challenge a Will, including children of the deceased (regardless of whether they’re estranged). We explain how it works.
When someone dies without a valid Will in place, this is called dying ‘intestate’, and the Rules of Intestacy will come into play to determine who is entitled to inherit what from the Estate.
The Rules of Intestacy place relatives of the deceased person in order of priority. The spouse or civil partner will be at the top of this list; then the children will be next in line. The Rules of Intestacy will not differentiate between a child who had a close relationship with their parent and a child who is estranged.
If there’s no surviving spouse or civil partner, then the Estate will be divided equally between the children.
Estranged Children’s rights with a Will
If the deceased person has put a Will in place which purposefully leaves out an estranged child, then this child will most likely not be entitled to inherit anything from their Estate. However, in some circumstances, they could still be entitled to make a claim on the Estate.
In Australia, we have what’s called testamentary freedom, which means that people are free to include or exclude whoever they want from their Will. This means that no one is obliged to leave anything to their children when they die if they don’t want to. It also means that they can leave inheritance to some of their children but not others.
To balance out this freedom, however, the law entitles specific individuals to make a claim on an estate if they believe that they have not been sufficiently provided for. This law applies both to Estates with a Will and those without.
There are strict parameters on who can and can’t make a claim on an Estate. Those who can legally make a claim include estranged children.
When considering whether or not to uphold a claim on an Estate, the Court will look at whether the Will makes sufficient provision for the person making a claim (or the Rules of Intestacy, if there isn’t a Will). If it doesn’t, the Court will determine whether they should intervene and award this provision, and if so, what type of provision would be appropriate.
If the deceased’s Will was professionally drafted and is legally robust, then there is less likelihood of a claim being successful.