Family relationships can be complicated, particularly when estrangement has lasted for many years. When it comes to estate planning, one of the most difficult questions parents face is whether they can legally exclude an adult child from their Will.

While Australians generally have the freedom to decide who inherits their assets, that freedom is not absolute. Even where a parent has deliberately excluded a child following decades of estrangement, that child may still have grounds to challenge the Will.

The recent Supreme Court of Western Australia decision in Giglia v Giglia [No 2] [2026] WASC 461 highlights the importance of carefully documenting testamentary wishes, understanding family provision laws and seeking professional estate planning advice.

For families considering how to distribute their estate, this case provides some valuable lessons.

The Background: A Family Divided by Decades of Estrangement

Domenica Giglia passed away in September 2023, leaving two adult sons, Carmelo and Antonino.

Under her Will, prepared in May 2006, Domenica left her entire estate to Antonino, appointing him and his wife, Calogera, as executors. Her other son, Carmelo, received nothing.

The estate primarily consisted of the family home in Westminster, Western Australia, valued at approximately $565,000, together with a smaller property in Sicily valued at around $63,000.

Domenica’s decision to exclude Carmelo was deliberate and reflected the family’s circumstances over many years.

A long history of estrangement

Carmelo’s relationship with his parents had deteriorated in the late 1990s, following his marriage. Over the following two decades, he had very limited contact with his parents, provided little assistance and prevented them from maintaining a relationship with their grandchildren.

A son who provided ongoing care

In contrast, Antonino and his wife remained closely involved in Domenica’s life, providing ongoing companionship, practical assistance and care throughout her later years and periods of illness.

Written explanations of her wishes

Importantly, Domenica had documented her reasons for excluding Carmelo.

Over a period of 13 years, she prepared three handwritten letters in Italian, dated 2003, 2006 and 2016, explaining the family circumstances and why she did not wish Carmelo to benefit from her estate.

These letters would ultimately play a significant role in the Court’s decision.

Despite his mother’s clearly expressed wishes, Carmelo challenged the Will.

At the time of his claim, he was experiencing financial difficulties, had limited income and superannuation, and lived in rented accommodation. He sought an order granting him three-quarters of his mother’s estate.

What Did the Court Decide?

The Court was required to balance two important considerations:

• Testamentary freedom: A person’s right to decide how their estate should be distributed after death.
• Family provision obligations: The ability of eligible family members to seek provision from an estate where they have not been adequately provided for.

Although the Court recognised Domenica’s clear intention to exclude Carmelo, it also considered his financial circumstances and entitlement to seek provision under Western Australian legislation.

Ultimately, the Court awarded Carmelo $50,000, substantially less than the three-quarters of the estate he had requested.

The decision demonstrates that while estrangement can significantly influence the outcome of an estate dispute, it does not necessarily prevent an excluded child from receiving an inheritance.

Three Important Lessons for Estate Planning

1. Estrangement Does Not Automatically Prevent a Claim

One of the most important lessons from this case is that excluding a child from your Will does not necessarily prevent that child from making a claim against your estate.

Even where there has been little or no contact for many years, an eligible adult child may still be able to seek provision.

However, the circumstances surrounding the estrangement can be highly relevant.

In this case, the Court considered Carmelo’s prolonged absence from his parents’ lives, his limited involvement in their care and the significant support provided by Antonino and his wife.

These factors substantially weakened Carmelo’s claim when compared with his brother’s contribution to their mother’s wellbeing.

What this means for your estate plan:

If you are considering excluding an estranged family member from your Will, it is important to understand that the reasons for the estrangement, the financial circumstances of those involved and the nature of your family relationships may all influence the outcome of a future claim.

2. Documenting Your Wishes Can Make a Significant Difference

Perhaps the most valuable lesson from Giglia v Giglia is the importance of documenting the reasons behind your estate planning decisions.

Domenica did more than simply exclude Carmelo from her Will.

She prepared written statements explaining her decision, including the history of the family estrangement and the conduct that had influenced her wishes.

Importantly, these statements were made at different times over more than a decade.

The Court gave substantial weight to this consistent record of her intentions.

Rather than viewing her decision as a temporary reaction to a family disagreement, the written evidence demonstrated that her wishes were longstanding and carefully considered.

What this means for your estate plan:

If you intend to exclude a child or make an unequal distribution between beneficiaries, it may be appropriate to prepare a separate statement explaining your reasons.

Such a statement should be carefully drafted, factual and consistent with your overall estate planning intentions.

It is also important to review your Will and supporting documentation periodically, particularly where family circumstances change.

While a written statement cannot guarantee that your Will will be immune from challenge, it may provide valuable evidence of your intentions if a dispute arises.

3. Courts Do Not Automatically Require Equal Inheritances

There is a common misconception that parents must leave their estate equally to their children.

This is not necessarily the case.

Parents may have legitimate reasons for distributing their estate unequally, including:

• One child having provided substantial care or financial assistance.
• Different financial circumstances among beneficiaries.
• Previous financial gifts or assistance provided during the parent’s lifetime.
• Longstanding family estrangement.
• A desire to protect vulnerable beneficiaries or provide for particular needs.

In Giglia v Giglia, the Court recognised the significant contribution Antonino and his wife had made to Domenica’s life.

Although Carmelo was awarded some provision, the amount was relatively modest compared with the overall estate and the inheritance his brother was intended to receive.

The Court’s approach reinforced the importance of respecting a deceased person’s wishes while ensuring that any necessary provision is appropriate in the circumstances.

What Does This Mean for Families in Victoria?

Although Giglia v Giglia was decided in Western Australia, the issues raised are relevant to families throughout Australia, including Victoria.

In Victoria, family provision claims are governed by Part IV of the Administration and Probate Act 1958 (Vic).

Under this legislation, certain eligible family members may apply to the Supreme Court for provision from a deceased estate if they believe the deceased failed to make adequate provision for their proper maintenance and support.

However, eligibility does not automatically mean a claim will succeed.

The Court considers a range of factors, including the relationship between the deceased and the applicant, the deceased’s obligations, the applicant’s financial circumstances, the size of the estate and other relevant circumstances.

Family estrangement may be an important consideration, but each case is assessed on its individual facts.

For Victorian families, the key message is that a carefully prepared Will, supported by appropriate documentation and professional legal advice, can help reduce uncertainty and the risk of future disputes.

How Can You Protect Your Estate Planning Wishes?

If you have experienced family estrangement or wish to distribute your estate unequally, taking a proactive approach to estate planning is essential.

At Hill Legal, we encourage clients to consider the following steps:

Review your Will regularly

Your Will should reflect your current circumstances, relationships and intentions. Significant family events, changes in financial circumstances or changes in relationships may warrant a review.

Clearly document your reasons

Where a beneficiary is deliberately excluded or receives a smaller share, consider obtaining legal advice about preparing a statement explaining your decision.

Understand the potential for family provision claims

A Will may be legally valid and still be subject to a family provision claim. Understanding who may be eligible to challenge your estate can help you make informed decisions.

Consider the impact on your executors and beneficiaries

Estate disputes can create significant emotional and financial pressure on surviving family members. Careful planning can help reduce ambiguity and provide your executors with clearer guidance.

Seek professional estate planning advice

Every family’s circumstances are different. Professional advice can help ensure your Will is properly prepared, your intentions are clearly expressed and potential risks are considered.

Final Thoughts: Your Wishes Matter, but Planning Is Essential

The decision in Giglia v Giglia is a reminder that family estrangement and inheritance disputes are rarely straightforward.

While the law recognises a person’s freedom to decide who should inherit their estate, that freedom must be balanced against the rights of eligible family members to seek provision.

The case also demonstrates the potential value of maintaining clear, consistent and well-documented records of your testamentary wishes.

For anyone considering excluding an adult child from their Will, or making unequal provision between family members, careful planning and professional advice can make a significant difference.

Need Advice About Your Will or Estate Planning?

At Hill Legal, we understand that estate planning can involve sensitive family relationships and difficult decisions.

Whether you are reviewing an existing Will, considering excluding a family member, or concerned about the possibility of a future estate dispute, our experienced team can help you understand your options and put appropriate arrangements in place.

Contact Hill Legal today on 03 5976 6500 or visit www.hilllegal.com.au to arrange a consultation and discuss your estate planning needs.

Disclaimer: This article provides general information only and does not constitute legal advice. Estate planning and family provision laws vary between Australian states and territories. You should obtain advice specific to your individual circumstances.

Case reference: Giglia v Giglia [No 2] [2026] WASC 461.