In a recent Supreme Court decision, Ward CJ has made an order for further provision to an adult daughter of the deceased who had been estranged from her father for many years. The daughter claimed the reason for the estrangement was due to her father and deceased older brothers engaging in sexual abuse of her when she was a child.
Under the will, the deceased had divided his estate in half – one half was going to his surviving son; and the remaining half was to be divided between 19 different beneficiaries which included both his surviving children, grandchildren and great grandchildren. In practical terms, the son was receiving 20/38 share of the Estate, and the daughter 1/38.
Cause for estrangement
The reason for estrangement was an issue of contention. Her brother (also executor of the Estate), denied any allegation of child sexual abuse and claimed the reason for the estrangement was more to the fact that she sold a property for a significant capital gain, that her parents had sold her at a reduced rate in order to assist her.
The Court held that a family provision claim is not an appropriate forum to raise allegations of child sexual abuse, and whilst they may explain the estrangement on the part of the plaintiff, such allegations can do no more than that. A claim for family provision should not be seen as a substitute to compensation for the deceased parent having failed in their legal or moral duty or obligation to be a good and responsible parent of the child.
The daughter was also estranged from her own daughter, who sometime after probate had been obtained “discovered” a partial handwritten letter of the deceased dated sometime in 2003 that appeared to set out reasons why he had not made greater provision for his daughter. The reasoning set out in the partial letter was centred on the assistance he had given his daughter during his lifetime in selling her the property at an undervalue, which supported the brother’s claim.
The plaintiff daughter had fallen on hard times financially. She was unemployed, with no prospects of future employment, she had no superannuation and was living on a property owned by a friend. She had horses for which the friend permitted her to retain on his property for no charge, however without that generosity, she would have been destitute and unable to afford retaining her horses and accommodation for herself.
There was also some contention as to whether the friend was in fact the daughter’s de facto partner (a relevant consideration only in terms of his particularly financial position). However, whilst Ward CJ was content to find that they were in a domestic relationship, she declined to find a de facto relationship.
Whilst the defendant tried to rely on previous decisions which found that support given to a person during the lifetime of the deceased was relevant and likely to reduce the success of a claim for further provision, her Honour noted that the deceased had also provided significant support to the defendant in his lifetime – namely the provision of accommodation until the death of the deceased. The brother had never left home and was not contributing financially to the property.
In this matter there were other beneficiaries that submitted their financial position to the Court.
Her Honour considered this was a case of the kind referred to in Taylor v Farrugia, where Brereton J said:
“where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.”
Her Honour made provision for a legacy of $300,000 instead of the approximately $60,000 she was entitled to under the will, to come from the half of the estate for the grandchildren and great grandchildren who had not submitted their financial circumstances to the Court, so the first half of the Estate going to the brother was unaffected.
Lesson to be learned – you still need to make “adequate and proper” provision for a child even though you may be estranged.
Watton v MacTaggart  NSWSC 1233