Case note: Family provision claim by an excluded son
Dodd v Dodd  NSWSC 199
The deceased person (the “father”) left his only child (“the son”) out of his Will, instead leaving everything to his sister (who is also the executor, “the defendant”). The son, aged 51 years, contends he has been left without adequate provision for his maintenance and advancement in life. The defendant rejects the son’s claim on the basis that the father was justified in making no provision for the son in his Will given his son’s aggressive and violent conduct towards the father and their estrangement for a period of approximately 18 years before the father’s death. Briefly, the father and son had a volatile history. There were issues of domestic violence on behalf of the father and the son had a long criminal record (seeing him serving prison sentence for 18 months) including assault, malicious damage to property, driving whilst unlicensed, larceny to name a few. The son’s history meant the father was said to be afraid of his son.
Evidence was provided to the Court (and was accepted) of the father’s drinking issues and the fearful and hostile environment in which the son was raised. The relationship is said to have deteriorated during the son’s teenage years.
The son’s case is that he was not estranged from his father and that he was actively attempting to improve their relationship. The son said his father was rejecting his attempts at contact and that whatever violent and criminal behaviour he had displayed in the past can largely be explained by his father’s rejection of him in early childhood. Moreover, the son claims he has overwhelming and immediately pressing financial needs.
Slattery J pointed out that the son’s criminal tendencies had been dealt with in the criminal jurisdiction and that the Act is to deal with whether a deceased person should leave an eligible person without proper and adequate financial support from the estate and the Court should not blend the two social policies in this case.
The father set out his reasons for leaving his son out of his Will in a statement (“Statement”) in conjunction with his last Will and those reasons were based on the son’s verbal and physical abuse towards him. However, in this Statement, the father points out that he allowed his son to live with him for 12 months once he was released from prison. In the same Statement, he states “I do not believe I have any obligation to my son …. to make provision and accordingly I have decided to exclude him from my said Will”. The Court pointed out the fact that the father let the son live with him was at odds with this comment in his Statement and also the fact that the father visited his son in prison.
Slattery J felt the Statement carried little or no weight as the father took no responsibility on how his treatment of his son and ex-wife (there were issues of domestic violence towards both his ex-wife and son) had on his son’s teenage years. Slattery J said a more honest Statement might have had some weight with the Court.
Application of legal principles
The test of whether provision should be made in any case is set out in s59(1)(c) of the Act as follows:
“The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both”.
The purpose of the Act is not to compensate eligible persons for any past failure in terms of a deceased person’s legal or moral duty to be 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 a deceased person.
The Court considered the past conduct of the father to explain the son’s current position, giving rise to his additional needs. The father’s past conduct and proven abuse was relevant as it had the effect of depriving the son of opportunities in life or there was some causal connection between the father’s past conduct and the son’s need for provision from the estate.
Slattery J took the following into consideration:
- the son is a disability pensioner and that his living arrangements for over 8 years were nomadic. He was living out of his 1998 car and that he survives on rummaging through garbage bins for food and also his desperate need for medical and dental work;
- the son’s effort to try to rebuild his relationship with his father over the years (the son could not have known the father’s passing would occur when it did so there was no ulterior motive on his part);
- the actions of the father during the son’s teenage years and adulthood causing the son to be on the path he currently is on and the father not sharing some responsibility; and
- the defendant’s (the son’s aunt) financial situation (she wanted to sell and buy a new home to renovate as she is aging and intended the new house to accommodate her other brother as he is also aging). Slattery J acknowledged the fact that she does not need to prove her need for her entitlement under the Will however, her case does seek to rely upon her circumstances as a basis to retain the provision made for her under the Will. Slattery J felt that her generosity and goodwill towards her family were praiseworthy but her own immediate needs for capital are not as pressing as the son.
Slattery J found in favour of the son and allocated him $520,000 out of the $800,000 worth of assets in order for him to find accommodation and pay for his medical and dental expenses (this amount has been placed in a trust and looked after by professional trustees to ensure the son did not squander the amount). Slattery J’s determination was not only based on the son’s financial situation but also due to the son being the only child of the father. His Honour stated that as strong as the son’s need for financial help was, a significant factor to be considered in determining adequate provision for the son was simply the fact that the son was the only child of the father.
Take away message
If there is an estrangement, give very careful thought to the wording of your s100 Statement you wish to be placed with your Will. You may consider leaving that person something in your Will as sometimes this may be enough to satisfy the person potentially excluded from your Will so they do not feel the need to contest your Will. Should you wish to discuss the drafting of your Will further please do not hesitate to contact Gillian Kirwan on 8226 7321 or should you have any family provision claim concerns, please contact Rebecca Tidswell of Carroll & O’Dea on 8226 7315.