When a parent dies and leaves nothing to their adult children – especially after years of estrangement – those children often feel a second rejection. They may wonder: is there any point in challenging the will? A recent decision of the NSW Supreme Court confirms that estrangement alone is not a complete answer to a family provision claim. However, the Court will also respect the close bonds a deceased person formed with others who were there for them in their final years.

The case of Re Estate Mitchell; Gould v Bachell [2026] NSWSC 516 provides a powerful illustration of how the Court balances these competing claims.

What happened?

Susan Mitchell (the deceased) died in August 2023, aged 69. She had three adult children: Julia, Ella and Campbell (the plaintiffs). However, she had been estranged from them since she left the family home in 2001 after a bitter breakdown of her marriage.

In her will, made in 2002 (during the heat of the divorce), she left her entire estate – worth approximately $2.5 million – to her niece, Penelope Bachell (the defendant). Penelope had lived with the deceased from the age of 15 and acted as a surrogate daughter, carer and confidante, especially during the deceased’s long battle with cancer and other illnesses.

The children had no contact with their mother for most of the two decades before her death. There were occasional cards and gifts, but no meaningful reconciliation. The children said they were traumatised by their mother’s departure and her bitterness towards their father. The deceased, in handwritten notes, said the children had “sold” her for their father’s money and were not there when she needed them.

The Court’s decision

Justice Lindsay of the NSW Supreme Court (Equity Division – Family Provision List) made orders in favour of all three children, despite the long estrangement. The Court ordered:

• Julia (daughter) – legacy of $200,000

• Ella (daughter) – legacy of $350,000 (due to her poorer health and greater need)

• Campbell (son) – legacy of $200,000

The remaining estate – about $1.62 million – was left to Penelope, the niece.

The Court also ordered that the children’s legal costs be paid from the estate on the ordinary basis, and the niece’s costs on the indemnity basis.

Key takeaways for clients

This case is important for anyone making a will, or anyone considering a claim against a parent’s estate.

1. Estrangement does not automatically disqualify a child

The Court accepted that the children had been “left without adequate provision for their proper maintenance, education and advancement in life” under section 59 of the Succession Act 2006 (NSW). Even though they were adults, financially independent and had homes (albeit with mortgages), the fact that their mother rejected them and left them nothing – while benefiting a niece – was enough to warrant intervention.

Importantly, the children did not need to prove they were “in need” in a destitute sense. The Court considered their emotional trauma, ongoing anxiety, and the adverse effect the estrangement had on their life prospects.

Takeaway: Adult children do not have to be homeless or penniless to make a successful claim. The Court looks at what a “wise and just” testator would have done, having regard to modern community standards.

2. The Court respects the testamentary freedom of the deceased – but not absolutely

Justice Lindsay emphasised that the Court does not “rewrite” a will just because it seems unfair. The niece, Penelope, had been a devoted surrogate daughter and carer for many years. She had a strong moral claim to a substantial part of the estate.

That is why she still received over $1.6 million. The children did not “disinherit” her entirely. The Court simply adjusted the will to recognise that the deceased’s total exclusion of her own children was unreasonable in the circumstances.

Takeaway: If you are making a will, you can favour a carer or a close friend over your children – but completely cutting out a child without proper justification risks a successful family provision challenge.

3. The reasons for estrangement matter

The Court carefully examined why the estrangement happened. Here, the children were traumatised by their parents’ marriage breakdown. The deceased had an affair, left the home, and actively disparaged their father. The children did not wilfully abandon their mother; they were collateral damage in a bitter divorce.

The Court noted that the deceased’s own handwritten notes were “projection” – she blamed her children for things that were not their fault. The children had tried (albeit belatedly and imperfectly) to reach out.

Takeaway: If you are a parent considering excluding an estranged child, keep detailed, honest records of your reasons. But be aware that if the estrangement was largely your doing, a court may still make an order in the child’s favour.

4. The Court can adjust legacies based on need

Ella received a larger legacy (350,000)thanhersiblings(350,000)thanhersiblings(200,000 each) because she was single, had health issues (ADHD and anxiety), and faced a higher risk of being unable to work. The siblings themselves recognised her greater need.

Takeaway: In a family provision claim, the Court will look at each applicant’s individual circumstances – health, relationship status, income, assets, and future prospects.

5. What does this mean for your estate plan?

If you are making a will:

• Think carefully before completely excluding an adult child, especially if the estrangement is not entirely their fault.

• Consider making a small provision (e.g. a legacy of 50,000or50,000or100,000) to reduce the risk of a costly court challenge.

• Document your reasons for any exclusion in a formal memorandum or letter to your solicitor. This evidence may help defend a claim.

If you are a child who has been left out of a parent’s will:

• Do not assume the estrangement bars you from claiming. You have 12 months from the date of death to file a family provision application (though you should seek legal advice immediately).

• The Court will consider your financial and non-financial circumstances – including emotional harm and lost opportunities.

Conclusion

Re Estate Mitchell is a compassionate and balanced decision. It recognises that family breakdowns are rarely one-sided. While the Court will honour a deceased’s choice to benefit a devoted carer like Penelope, it will not allow a parent to completely turn their back on their children simply because of a bitter divorce that happened decades earlier.

If you are concerned about a family provision claim – whether you are planning your own estate or considering a claim against a loved one’s estate – seek experienced legal advice promptly. The law in this area is complex, and every family’s story is unique.

Disclaimer: This article is based on the published judgment in Re Estate Mitchell; Gould v Bachell [2026] NSWSC 516 and is for informational purposes only. It does not constitute legal advice. You should consult one of our qualified legal professionals regarding your specific circumstances.