Michele Davis
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Excluded child's claim dismissed: 40 years of estrangement after bitter divorce (NSW)
October 26, 2017 2 Comments by Michele	disentitling conduct
In case it's not already evident to my readers, I have a particular interest in family provision cases that touch on disentitling conduct or estrangement. So, it's no surprise this recent case in the Supreme Court of NSW caught my eye yesterday where a family provision application by an adult child, who was excluded from any provision in the Will, was dismissed entirely and the words estrangement appeared in the judgement.
Generally speaking, where estrangement is a term found in these judgments, the question of whether provision should be made often turns to who was 'responsible' for the estrangement (Note, this is an over-simplification of the concept; it's always a very complicated question with many angles – and this aspect is only one crumb of the pie). Many cases that I have read on the topic appear to consider this and often find that if the deceased was 'responsible' for the estrangement, the Court tends to lend itself to making provision for the claimant and/or 'more' provision in some cases (for example, see my article Family Provision and 30 years estrangement). This is not such a case.
The case of Larkin v Leech-Larkin [2017] NSWSC 1418 considered a claim by Julian, the eldest of four sons, on his mother's estate. Julian's mother, Wilma, had left her whole estate to her second eldest son Lucien (and by doing so excluded Julian and his younger brothers, Vincent and Adrian).
The family experienced a difficult past and strained relationships. The parent's marriage appeared to be quite challenging and the divorce was described as an "exceptionally bitter one" by the Court (at para 42). Julian continued to have a relationship with his father, after the separation, which appeared to be difficult for his mother to accept. In addition to the family difficulties, the family were at the centre of a sexual abuse claim that Lucien had brought against the school he attended and, while not directly related to the family, it appeared that Lucien's account and Julian's account of the abuse differed and caused a great deal of strain within an already challenging family dynamic.
Wilma had left a history of will-making that excluded Julian from much benefit from her estate from as early as 1972. Her Will made in 2003 had left a small bequest of $5k to each of Julian, Vincent and Adrian, and the remainder to Lucien. Her last Will, made in March 2013, left everything to Lucien. The net value of the estate was approximately $680,000 (including the costs of the proceedings).
Wilma and Lucien had enjoyed a close relationship for over 40 years and they were deeply involved in a housing project together, that was clearly close to Wilma's heart. The Court was provided much evidence of the difficult relationship between Julian and his mother and the content of letters that were exchanged over the years, which appeared to largely be connected with Julian's relationship with his father. At paragraph 82, the Court said "The dominant theme is that Julian must confess his errors, real or imagined, as a condition of being readmitted into the deceased's favour."
Sadly, the Court identified that there appeared to be a mutual disrespect between Julian and his mother and Julian did not have any contact with her during her final illness or approximately the last 8 years of her life. Referring to the treatment of Julian by his mother, the Court said:
"The deceased sought to impose conditions on Julian if she was to communicate with him. For his part, he apparently did not share her interests and made little or no effort to communicate with her." (para 54)
Wilma's lawyer also provided the Court with evidence as to the conversations had with Wilma in response to him posing the question of one of her son's making a claim for provision, she said words to the effect:
"[T]hey would not dare make a claim against my estate, they know what Lucien has done for me and that he is entitled to everything that I leave. Julian in particular has done absolutely nothing for me over the last 20 years. Lucien knows that I have left the property to him and he trusts me implicitly." (para 57)
Notwithstanding Julian had limited job prospects for his age (68 years), suffered various health issues (including a permanent disability in his left knee, which would likely require a total knee replacement), and had his adult children living with him and a net financial position of approximately $240,000, the Court dismissed the application.
In referring to claims by independent children, the Court said:
"…the Court's attention should be on "advancement" rather than "maintenance" or "education"… "the deceased had no obligation to maintain or educate him and the question is whether, having regard to all relevant factors, the deceased owed an obligation to provide in some way for him by way of advancement against his old age." (para 78)
Noting that the Court is rarely able to determine what is "proper" better than the testator themselves, and referring to the relevant authorities on the topic, the Court said:
"unless it appears that the testator has misused his or her advantage, or the circumstances existing at the time of the hearing were not reasonably foreseeable for the testator, the Court should be reluctant to depart from an apparently reasonable judgement on the part of the testator: Stott v Cook (1960) 33 ALJR 447 at 453-454; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127]." (para 79)
Considering the impact of the difficult relationship and the attitude of the testator toward Julian, the Court said:
"…he [Julian] was only 22 when the will was made cutting him out of any inheritance. It is, of course, possible that the deceased's treatment of Julian was deserved. But, unfortunately, it is all too possible that, in her bitterness with her husband, the deceased could not forebear from trying to make her sons take sides, or from punishing Julian when he refused to do so. Even if the deceased's complaints against Barnett Larkin were justified (and there is no independent evidence that they were), her behaivour towards Julian would only be justified in the strongest case of misconduct on his part, amounting to complicity. There is no independent evidence at all to support this. In fact, the suggestion in the 1972 will that Julian's brothers might provide for him suggests that the deceased may have recognised, however imperfectly, that Julian could not fairly be blamed for failing to take sides. It appears that although she could not bring herself to benefit him directly, she accepted that he was still entitled to some consideration." (para 81)
As to Julian's conduct in life and toward his mother, the Court said:
"There are hints in the evidence that Julian had led a somewhat chequered life. The deceased referred to his [sic] being denied access to his children when they were young, and to his being in trouble with police over an alleged assault. But there is no real evidence of misconduct on the part of Julian towards the deceased once one puts aside the deceased's apparent insistence that he takes side with her against his father." (para 86)
"…I am not satisfied on the evidence that the deceased's criticism of Julian was justified." (para 88)
"…I am not satisfied that the exclusion of Julian from the deceased's 1972 will, or the criticisms made of him in her letters, represented fair and rational judgments on her part. The only bases for the deceased's views are the statements in the will itself and the letters, and they are too slender a foundation." (para 89)
The Court further considered how the deceased had treated Julian during her life and through the terms of Will and said:
"The gifts of virtually the whole, and then the whole, of the estate to Lucian in the 2003 and 2013 wills would have been consistent with an appreciation on the deceased's part of the closeness of her relationship with Lucien and of his involvement, both financial and emotional, in the development of the Francesca Park property." (para 91)
"Julian may have been justified in seeing the deceased as hectoring and controlling and in declining to engage with her on such terms. But the fact remains that, although the deceased might bear some of the responsibility for it, Julian was estranged from the deceased for 40 years or more. Julian contributed nothing to the Francesca Park property, either financially or emotionally, and there is nothing to suggest that he would, if asked, have made any financial contribution. Lucian, on the other hand, shared the deceased's life for over 40 years and was deeply involved in the project, which was obviously close to the deceased's heart." (para 92)
In closing, the Court imparted these words in relation to Julian and family provision cases generally:
"In my opinion, these circumstances provided a justifiable basis for the deceased's decision to give the whole of the estate to Lucien. I am not satisfied, in the circumstances, that the failure to make provision for Julian was not "proper". The result is disappointing for Julian, who might one have expected to inherit a share of the Springwood properties, to which both of his parents contributed. But the law imposes no obligation on parents, during their lifetimes, to provide advancement for their children or to safeguard assets so that such advancement can be provided by will. Nor can the power to make a family provision order under the Succession Act be exercised for the purpose of salving wounded feelings or indignation produced by the deceased's behaivour during his or her lifetime. It is a matter for Lucien to consider when he makes his own testamentary arrangements whether any allowance from what is left of the family assets should be made for Julian and his children." (para 95).
You can read the case here.
Categories: disentitling conduct, Estates, estrangement, family provision, Litigation, New South WalesTags: adult children, brisbane succession lawyer, contesting wills, costs, deceased estates, disentitling conduct, estate litigation, estrangement, family provision, New South Wales, succession act nsw, succession law, wills & estates lawyer brisbane, wills and estates
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Greg Anastasi
Greg Anastasi	 October 26, 2017 at 5:48 pm Reply
I think the outcome would have been very different if it were befor J Hallen. Who when I last checked does over 80% of FPA cases.
"What would a good and just testator have done without regard to past differences……."
"I will hear the parties, if necessary, on costs." Does this mean this was party/party pay your own costs?
Michele	 October 27, 2017 at 9:37 am Reply
You know, I actually thought about Justice Hallen as I read this case thinking the same thing; I wonder what he would have said.
Re costs, not necessarily. The Court didn't make any decision on costs at this stage, but usually this means that the Court will hear an argument about costs if the parties cannot come to an agreement on the issue themselves. If no agreement, then we may find another judgement about costs at a later stage. Time will tell.