An update on estrangement – community expectations of a wise and just testator
Dodd v Dodd [2022] NSWSC 199 – Judgment handed down by Slattery J on 7 March 2022.
The late John Dodd left his only son Peter out of his last will, instead giving the whole of his estate to his sister Marilyn.
The deceased explained his reasons for excluding Peter from his will in a ‘Succession Act s.100 statement’ in which he described an irretrievable breakdown of the relationship after a long period of animosity and a physical assault.
Marilyn argued that Peter had been aggressive and violent toward the deceased and that they had been estranged for over 18 years.
Peter countered with a claim that he had been actively trying to improve the relationship with his father, but that his father was rejecting those attempts. Evidence was heard that the last violent incident between the two was almost 20 years prior and that Peter had made numerous attempts to apologise and reconcile but the deceased remained closed to the relationship.
Peter relied upon a medico legal report from Dr Potter, a psychiatrist. Dr Potter opined:
“It is clinically reasonable to accept that in significant part, [Peter’s] disturbing emotional expression and struggle in intimate relationships is a reflection of having lived in a household of domestic violence and a rejection from a father”. [97]
Dr Potter went on to describe the continued effort Peter made with his father despite ongoing rejection and said:
“Overall, that Peter Dodd is a very disturbed man and his disturbance is most likely due to be out of life trauma – emotional trauma – through parental rejection and parental conflict; that is, between the parents, which has led to him leading a life where he’s struggled with living, work and relationships”. [101]
At the time of the hearing Peter was homeless, living out of his car. He was in receipt of a Centrelink disability pension but his liabilities far exceeded his assets. He was in need of psychiatric medical treatment and dentistry.
Slattery J considered the s.100 statement prepared by the deceased and said:
“The deceased had inflexible rules. A man like that would have been unable to accept that he may have been partly responsible for his son’s attitude towards him and the hostility between them.
The s. 100 statement contains no confession by the deceased that he ill-treated his wife or that he put little time into his son’s youth. A more honest document might have some weight with the Court, given the Court’s findings. These statements carry little or no weight”. [72]
Slattery J accepted that Peter had made attempts to reconcile the relationship and accepted the plaintiff’s submissions that it was not a true estrangement case. He noted:
“The dynamic of the relationship has its origins long ago and the deceased bears significant responsibility for the poverty of the relationship due to his conduct neglecting Peter’s emotional needs for a proper relationship with his father, when Peter was very young”. [146]
Slattery J inferred that the deceased’s rejection of Peter was a significant factor behind his current living and financial need.
The plaintiff was successful and received a legacy of $520,000 from a net estate of $800,000 once legal costs of the parties were paid.
Kitteridge v Kitteridge [2022] NSWSC 193 – Judgment handed down by Robb J on 1 March 2022.
The late Brenda Kitteridge left 90% of the residue of her estate to her son Steven, excluding entirely her two other sons Lee and Robert.
The deceased noted in a clause of her will that Lee and Robert had “refused to have any contact with me for many years”.
Lee brought a family provision claim which the estate defended on the basis of an estrangement of 30 years or so.
The deceased had prepared no fewer than 9 statements of testamentary intentions over the years. Robb J described balancing a due level of respect to the deceased’s testamentary intentions with
“what has been termed the “moral duty” of the deceased to the applicant or, alternatively, those contemporary accepted “community standards and expectations” that underpin the relationships between a testator and [eligible persons]”. [84].
Robb J noted the observation by Hallen J that “a wise and just testator would not be blinded by intergenerational disappointment, or disharmony, to the need of her, or his, child. As a parent, she, or he, ought to recognize that family disharmony, and disappointment in the conduct of a child, are commonplace in family relationships”. ([160] Kemperman v Antonenas [2021] NSWSC 1555).
Evidence was heard about the cause of the estrangement between Lee and the deceased. Robb J accepted Lee’s evidence that the beginning of the estrangement was when Lee took his father in after the separation of his parents. The deceased gave Lee a form of ultimatum to essentially choose between his parents, Lee declined to abandon his father. Robb J commented:
“The evident distress in the witness box that Lee displayed about the consequences of what was in fact his own abandonment by his mother justifies my judgment that Lee did not become estranged from the deceased as a matter of his own choice”. [102]
Robb J went on to say:
“There is no evidence of any conduct by Lee that justified the extreme views stated by the deceased in her testamentary statements which were, in my view, irrational in so far as they attributed fault to Lee for the estrangement” [108].
Lee conceded that he had made limited attempts to reconcile. Robb J commented:
“A parent who provokes an estrangement with their child who is forced to make an unsatisfactory choice between their parents should recognize that it is expected of the parent to take responsibility to break down emotional barriers created by the parent’s conduct, and not to rely upon the child to do so”. [117]
The estate was reasonably substantial and sufficient to accommodate testamentary provision. Lee received a legacy of $460,000 of the $2.5M estate.
Conclusion
Slattery J summarized the issues perfectly in the Dodd case:
“The purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased’s legal or moral duty to be a good and responsible parent; nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased…
But the Court may take into account past conduct of the deceased where it provides an explanation for the current position of the plaintiff giving rise to additional needs and the deceased’s past conduct and proven abuse is not irrelevant ere it to have the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff’s need for provision”. [130 and 131]