Navigating Family Estrangement and Testamentary Wishes: Lessons from Giglia v Giglia

Can a parent completely disinherit an adult child after decades of estrangement?

For estate planning practitioners, advising clients on testamentary exclusion requires balancing the principle of testamentary freedom against the statutory reach of family provision legislation.

The Supreme Court of Western Australia's recent decision in Giglia v Giglia [1] offers a masterclass in how courts assess prolonged family estrangement, the weight they give to contemporaneous statements of testamentary wishes, and the serious risks of distributing estate assets when an excluded child emerges.

The Facts: Decades of Severed Ties

The deceased, Domenica Giglia, passed away in September 2023, leaving two surviving adult sons: Carmelo (born 1963) and Antonino (born 1966). Under her last will executed in May 2006 (2006 Will), Domenica appointed Antonino and his wife, Calogera, as executors and left her entire estate exclusively to Antonino, making no provision whatsoever for Carmelo.

The primary asset was the longtime family home in Westminster, Western Australia (Westminster Property), valued at $565,000 at death, alongside a modest, incomplete building and rural parcel in Sicily (Sicilian Property), valued at approximately $63,000 (€38,800).

 Carmelo's exclusion from the estate was entirely deliberate:

• Longstanding Estrangement: Carmelo’s relationship with his parents deteriorated in the late 1990s following his marriage. He withdrew from the family, had virtually no contact with his mother for extensive periods spanning over two decades, provided negligible assistance, and denied his parents contact with their grandchildren. 

• The Dutiful Sibling: Conversely, Antonino and his wife provided continuous, daily care and companionship to his parents, assisting them through chronic illnesses and attending to their personal and property needs until their respective deaths. 

• Contemporaneous Testamentary Statements: Domenica documented her reasons in three handwritten Italian letters spanning 13 years (in 2003, 2006, and 2016), admitted into evidence . The May 2006 statement of wishes, signed alongside her will, detailed that Carmelo had offended them, disowned them, and refused to let them see their grandchildren.

Despite these facts, Carmelo, facing strained financial circumstances at age 63 with modest income, rented accommodation, and limited superannuation, applied to the court seeking an order for provision equal to three-quarters of the estate.

Key Legal Principles Distilled from the Judgment

1. Estrangement Does Not Bar Jurisdiction, but Restricts Quantum

As confirmed in the case of Hill v Murray , the mere fact of estrangement does not automatically preclude a claimant from satisfying the jurisdictional requirement to be eligible to make a claim. Antonino rightly conceded jurisdiction because Carmelo was left without adequate provision for his advancement in life.

However, as Lundberg J observed, the nature and underlying causes of the estrangement remain profoundly relevant to the exercise of the court's discretion at the second stage. Where an adult child unjustifiably withholds support, love, and access to grandchildren in a parent's declining years, their moral claim on the estate is severely weakened compared to a sibling who discharged dutiful filial care.

2. Substantial Evidentiary Weight of Deceased Statements

Applying the decision from the case of Plummer & Anor v Montgomery,  the court held that significant weight must be given to a testator's written statements explaining why they disposed of their estate in a particular manner. Domenica’s letters were no single, fleeting expressions of anger; they provided a consistent, corroborated historical record over 13 years.

The judge emphasised that if consistent, considered statements of testamentary wishes supported by objective conduct were not accorded substantial weight, testamentary freedom would lose practical significance.

3. Interference Only to the Minimum Extent Necessary

A parent is under no legal obligation to equalise distributions among adult children, the court reiterated that where intervention is warranted, testamentary freedom must be interfered with only to the minimum extent necessary to make adequate provision, guided by what would inform a “wise and just testator”.

Weighing Carmelo’s financial need against Antonino's superior moral claim and the modest size of the estate, the judge Carmelo a modest provision of only $50,000.

Core Practice Takeaways for Estate Planners

1. Detailed, Periodic Testamentary Statements Are Vital: When drafting a will that excludes an adult child, do not rely on standard boilerplate exclusion clauses. Advise clients to record detailed, objective, and signed statements of reasons addressing specific conduct, missed contact, and attempts at reconciliation. Reviewing and reaffirming these statements across time creates compelling evidence.

2. Manage Client Expectations on Total Disinheritance: Practitioners must caution testators that prolonged estrangement alone rarely precludes an award if the excluded adult child demonstrates genuine financial need. Even where the moral claim is heavily compromised, courts may still grant a modest safety-net provision.

 [1] Giglia v Giglia [No 2] [2026] WASC 461

This publication is distributed by Inherit Australia solely for general informational and educational purposesavigating Family Estrangement and Testamentary Wishes: Lessons from Giglia v Giglia