The recent case of Abbott v Abbott [2025] WASC 30 (Abbott v Abbott) highlights the critical importance of properly drafting wills to ensure all children, including estranged ones, are considered. This case underscores the potential legal consequences of failing to make adequate provision for children and the role of the Family Provision Act 1972 (WA) in rectifying deficiencies in testamentary wishes.
In Abbott v Abbott, the deceased, Kenneth Charles Abbott, executed a will that primarily benefited his surviving spouse, Shari Abbott, while making no provision for his three biological children from a previous marriage. Two of the deceased’s daughters, Norelle Anita Abbott and Luana Elise Abbott, challenged the Will under section 6 of the Family Provision Act 1972 (WA), arguing that they had not been adequately provided for.
The Supreme Court of Western Australia found that at least one of the claimants was entitled to further provision from the estate, demonstrating the principle that testators have a moral duty to make adequate provision for their children, regardless of estrangement or family disputes
One claimant, Norelle Abbott, succeeded in her claim because the court found that she had genuine financial need and that the Will did not provide adequate maintenance, support, education, or advancement in life for her as required under the Family Provision Act 1972 (WA). The court accepted her evidence regarding her financial situation, which included significant constraints, such as expenses for her daughter’s education, necessary medical treatment, and a limited income.
On the other hand, Luana Abbott was unsuccessful because the court identified significant deficiencies in her case. While she argued that she required additional financial provision, the court noted that her case was not well-prepared and lacked key supporting evidence regarding her financial needs.
Essentially, the key differences were the strength of evidence presented, the evidenced financial need, and the credibility of each claimant’s case.
Failing to include estranged children in a Will can result in costly and time-consuming litigation. In Abbott v Abbott, the court had to intervene to ensure fair distribution, which could have been avoided with careful estate planning.
The Family Provision Act 1972 (WA) empowers the court to alter a Will if it does not provide adequate maintenance and support for eligible family members. While a testator has the freedom to distribute their assets as they wish, this freedom is subject to a consideration of the legal obligations towards dependents, including children, even those with whom they had strained relationships with
In Abbott v Abbott, the deceased’s Will left the entire estate to a trust controlled by the surviving spouse, giving her broad discretion over distributions. This raised concerns over whether the deceased’s intentions were being fulfilled and whether his children were unfairly excluded.
A well-drafted Will should anticipate potential challenges and ensure clarity in asset distribution. This includes explicitly addressing estranged children, either by making provisions for them or providing clear reasoning (in a legally sound manner such as a statutory declaration annexed to the Will) for their exclusion.
Estate disputes can create lasting divisions among surviving family members. Properly structuring a Will with balanced provisions can help mitigate tensions and prevent potential litigation.
The case also demonstrated that if someone wishes to challenge a will, the challenging party needs to provide proper evidence to demonstrate that, in their particular circumstances, they have a proper need.
Include all children in the Will – Even if a testator wishes to leave a reduced or no provision for an estranged child, this should be clearly stated with legally sound reasoning to reduce the risk of challenges.
Consider testamentary trusts – While these can be effective estate planning tools, they should be structured to ensure fairness and compliance with legal obligations.
Regularly review and update Wills – Family dynamics change, and wills should be updated accordingly to reflect the testator’s current wishes and legal responsibilities. We suggest every 4 to 5 years of if there are significant changes in your family such as births, deaths or marriages.
Seek professional legal advice – Expert estate planning advice can help draft a legally tough Will that minimizes the risk of litigation.
The Abbott v Abbott case serves as a cautionary tale for those drafting their Wills. Excluding children, especially without clear legal justification, can lead to legal challenges, delays, emotional tolls and family disputes. Proper estate planning ensures a testator’s wishes are respected, while upholding legal obligations to provide for dependents, ultimately preventing unnecessary litigation and ensuring a fair distribution of assets.
Thank you to Kerri Evangelista, Associate, for her valuable research and assistance with this article.
