The recent case of  Bourke v Keep illustrates that estrangement from the deceased does not necessarily prevent a successful Family Provision claim. In this case, the claiming daughter had been estranged from her mother for 38 years after a falling out with her at the age of 20.  The daughter was awarded $200,000 from an Estate worth approximately $690,000.  A brief summary of the case is below.

Bourke v Keep [2011] NSWSC 88

 Brief facts: The Plaintiff, the daughter of the deceased, brought a family provision claim regarding the Estate of the deceased. The daughter had had a falling out with the deceased at the age of 20 regarding the daughter’s decision to get married. The two had been estranged for approximately 38 years. In her will, the deceased wrote: “I have made no provision in this my Will for my daughter… because of her complete lack of concern or contact with me and other members of my family over a long period of time”.  The deceased’s Estate was worth approximately $690,000.

Held: As the daughter of the deceased, the claimant was an “eligible person” as required in section 57(1)(c) of the Succession Act 2006 (NSW). The Court considered questions of whether the applicant had been left without adequate provision for her proper maintenance, education and advancement in life and then various factors in order to decide what provision ought to be made, including the financial circumstances of the Plaintiff.  With respect to the 38 year estrangement, the Court found that clearly the Plaintiff and the deceased had mutually turned their back on their relationship.

The Court refered to, among other cases, the Court of Appeal in Ford v Simes [2009] NSWCA 351, quoting  Bergin CJ  who said: “…it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children… this is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”.

Justice Bergin acknowledged from previous cases however that if the estrangement from the testator is explicable, a claimant may still achieve an order for provision.

The Court found that although there was no state of hostility between the Plaintiff and the deceased there was a sense of a child treating her parent callously by not taking any steps to end their estrangement.  The same could be said of her mother’s stringent refusal to make any attempt at reconciliation.  At least two opportunities occurred when this could have happened.  Because of the the mother’s refusal the Court found that the Plaintiff was not barred from making a claim. But the Plaintiff’s conduct meant that her moral claim on the testator’s estate was reduced.

 The Court awarded the Plaintiff $200,000 from the deceased’s Estate.

This article is provided for your general knowledge and not to be read as legal advice.

Under section 57(1)(b) of the Succession Act 2006 (NSW), a person is an eligible person to make a claim from the estate of the deceased if they are “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”.

The Act does not define “de facto relationship”, however the term is defined for the purpose of the Succession Act by section 21C(3)(a) of the Interpretation Act 1987 (NSW).  Section 21C reads as follows:

SECT 21C References to de facto partners and de facto relationships

(1) Meaning of “de facto partner” For the purposes of any Act or instrument, a person is the “de facto partner” of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or

(b) the person is in a de facto relationship with the other person.

(2) Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a “de facto relationship” with another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3) Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

(4) Meaning of “related by family” For the purposes of subsection (2), 2 persons are “related by family” if:

(a) one is the child (including an adopted child) of the other, or

(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or

(c) they have a parent in common (including an adoptive parent of either or both of them).

(5) Subsection (4) applies:

(a) even if an adoption has been declared void or is of no effect, and

(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.

(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.

In the recent case of Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635, Associate Justice Macready considered the question of whether a defacto relationship existed.  In that matter the Plaintiff claimed she had been in a defacto relatiionship with the deceased for 16 years.  The deceased’s daughter, step-daughter grandchildren and step – grandchildren were beneficiaries under the will, but no provision had been made for the Plaintiff.  His Honour addressed each of the criteria set out in section 21C(3).

With respect to whether there was common residence as referred to in S21C 3 (b), his Honour noted that during the period of the relationship the Deceased always had his house at Vaucluse and the Plaintiff rented a flat at Glebe. His Honour noted that there is nothing in section 21C that requires a couple who are living together to share the same household full time or to live in one house. However his Honour found that in this instance the Deceased used his Vaucluse residence as a business base whilst spending most of his evenings, if not all, with the Plaintiff.

With respect to “the reputation and public aspects of the relationship” referred to in section 21C(i), his Honour said, among other things, that over the years the Plaintiff and the Deceased went on many holidays together and that they had many friends that they visited at various times.  His Honour also noted that the Deceased was involved with Susan’s family including her parents who lived in Canberra.

His Honour  said it is always a question of degree whether there is a de facto relationship and referred to  Dunk v Public Trustee [2003] NSWSC 37 and Ward v Anderson ( New South Wales Supreme Court, Waddell CJ in Eq, 6 June 1989, unreported).

His Honour found that in this instance there was a defacto relationship as referred to in section 57(1)(b).

This article is provided for your general knowledge and not to be read as legal advice.

The question of whether a “moral duty” owed by the deceased is applicable in determining family provision applications has been the subject of some debate over time. After a period of doubt, the Courts have confirmed its applicability in determining family provision claims. 

The concept or “moral duty” had been utilised by the Courts since the inception of the Family Provisions legislation in Australia , however, cases emerged in the 1950’s calling into question the interpretation of the legislation using concepts of “moral duty” (see Fullagar J in Coates v National Trustees executors and Agency Co. Ltd (1956) 95 CLR 494.

In Singer v Berghouse (No 2) (1994) 181 CLR 201. Mason CJ, Dean & McHugh JJ suggested family provision claims should be considered more objectively.  At 209, CLR, their Honours said:

“Indeed references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss in the statutory language”.

In the High Court decision of Vigolo v Bostin [2005] HCA 11 however, a 3-2 majority affirmed the applicablity of “moral duty” in determining family provision claims.  Gleeson CJ 11at paragraph 25 said:

In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.

In the subsequent NSW Court of Appeal decision of Nicholls v Hall (2007) 2 ASTLR 419, the Court described the concept of “moral duty” as relevant but  not determinative and potentially misleading (per curian Mason P, Hodgson and McColl JJA at [40]).  In that case the Court ended up preferring an approach based on considering the concept of a “moral claim” of the applicant.  

In Palmer v Dolman [2005] NSWCA 361 and Alexander v Jansson [2010] NSWCA 176, the concept of “moral duty” was found by the Court of Appeal to apply in determining family provision claims.

In Alexander v Jansson, Brereton J (Basten JA and Handley AJA agreeing) said relevantly at paragraph 18:

“…The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of “moral duty” which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74];”

Brereton J referred to s 80(2)(b) of the Succession Act and Banks v Goodfellow (1870) LR 5 QB 549 as further support for this approach.

This article is provided for your general knowledge and not to be read as legal advice.

In determining a claim for provision under the Succession Act 2006 (NSW) (“Act”), the Court will consider, at different stages, a number of factors set out in the Act.  An outline of some key provisions is provided below.

Section 59 of the Act is an important provision with respect to when a family provision order may be made.  The Court must first be satisfied that the applicant is an “eligible person” within the meaning of section 57(1).  An eligible person in section 57(1) is either of the following:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

In the case of an applicant who falls within s 57(1)(d), (e) or (f),  the Court must also consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b).  The Act does not set out what these factors are.

In the recent case of  Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535, His Honour Hallen AsJ identified two tests from the cases with respect to these factors.  The first is that the factors are factors which, “when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased” (paragraph 44 of His Honour’s judgment). The second approach is that the factors are satisfied where the application has reasonable prospects of success.  His Honour preferred the first test.

If the above matters with respect to the eligible person are met, the Court then considers, whether, “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.” (section 59(1)(c)) 

Once the Court is satisfied that the  adequate provision has not been given, it can then consider whether to make a family provision order (s 59(2)).  The Court has a discretion whether or not to make the order.  In considering whether to make the order, the Court may consider the matters referred to in s 60(2) of the Act.  Those are:

 (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

In Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian, Hallen AsJ considered that some of the matters referred to in section 69(2) would be relevant in considering the prior question of whether adequate provision had been made.  His Honour set out the following comments from the High Court case Singer v Berghouse (No 2) (1994) 181 CLR 201 (at 209-210) regarding the matters a Court must consider when determing whether adequate provision has been made and then determining whether to make such an order:

“… The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”

Hallen AsJ also referred to comments from Callinan and Heydon JJ in Vigolo V Bostin (at 230-231):

“We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

This article is provided for your general knowledge and not to be read as legal advice.