04 December 2017

The Ghost of Christmas Past

Estrangement from a child may still entitle them to more than just a lump of coal from your estate

Christmas is a time when we reflect on the year that has been; we celebrate our triumphs and acknowledge our tribulations.  It is often a time for forgiveness and new beginnings.  That being said, Christmas can also be a sad time for many.  Financial pressures and the social ideology that Christmas is an occasion which is best spent with your family may often leave people feeling lonely or isolated, especially if they are suffering the loss of a loved one, due to their passing or years of lost contact.  With the New Year around the corner, people become mindful of their experiences (whether good or bad) over the holiday season, which sometimes impact on their decisions when they decide to sort out their affairs come January/February.

“Estranged” is often a word used by many when explaining why they are not providing for someone in their will, or providing them with a minimal gift.  I often hear the frustration clients have when I explain to them that estrangement alone does not necessarily preclude, for example, a child from making a claim for provision from an estate.  The weight and relevance of estrangement in a family provision claim is different for every matter, as it involves careful consideration of totality of the relationship (who caused the estrangement) and each party’s individual circumstances.

The case of Wright v Wright [2016] QDC 74 illustrates the impact of estranged relationships in family provision applications.

The deceased, Keith Arthur Wright passed away in 2013 at the age of 73 years.  He was survived by his two children, Casandra Wright aged 47 years and Peter Wright aged 50 years.  Casandra and Peter were estranged from their father and had barely seen him since they were young children.

At the time of his passing, Mr Wright’s estate was worth over $1.8 million. In his last will, he left the proceeds of a superannuation policy to the Royal Children’s Hospital Foundation and the residue of his estate to be divided between his siblings, Trevor Wright and Lynette Roberts (“the respondents”).

Casandra and Peter made an application for provision from their late father, Mr Wright’s estate.

As no provision was made for Casandra and Peter in the will, the court needed to assess whether this was inadequate provision for the proper maintenance and support in all their circumstances, including Casandra and Peter’s financial positions, the size and nature of the estate, the ‘totality of their relationship’ and the relationship between Mr Wright and others who have legitimate claims.

In looking at Casandra’s circumstances (financial and non-financial) it was noted by the court that:

  1. Casandra was married once before and was separated from her second husband.
  2. She had twin daughters to her first marriage, aged 18 years. One of her daughters lived with her.
  3. Casandra was employed as a dental assistant by Queensland Health.
  4. She periodically took second jobs to assist with her finances.
  5. Casandra owned a car, some furniture and had $28,000.00 in savings. She did not own a home.
  6. At the time of the hearing, she was living with her mother and her mother’s partner.
  7. She was in reasonable physical health, but suffered from psychological disorders including depression, anxiety and an eating disorder.

In looking at Peter’s circumstances (both financial and non-financial) it was noted by the court that:

  1. Peter was married once before and had two children, aged 21 and 24.
  2. Peter was casually employed.
  3. He had a car worth $4,000.00, approximately $800.00 in the bank, furniture and personal items.
  4. Peter had an overdue child support balance of nearly $50,000.00 and a credit card debt of $3,500.00.
  5. Peter was in reasonable health.

The respondents (Mr Wright’s siblings) both suffered from ongoing health problems, however had modest financial standing and a close relationship with their brother.

In looking at the ‘totality of the relationship’ between the children and Mr Wright, evidence was presented that Casandra and Peter’s relationship with their father stopped in 1979, some three years after Mr Wright’s separation from their mother.  Casandra and Peter were aged 10 and 13 years at the time.  From that point on Mr Wright did not maintain contact with Casandra and Peter, nor did he acknowledge their birthdays or give Christmas gifts.  Casandra explained to the court that she felt abandoned by her father, and said “I couldn’t understand why he didn’t want to continue seeing us”.

Both of the children gave evidence of seeing Mr Wright at their grandfather’s funeral, some 24 years prior to Mr Wright’s passing.  They expressed their disappointment and hurt when their father saw them but then walked away.

Casandra also wrote to her father on two occasions after the birth of her twin daughters, sending photographs of herself and her daughters.

Peter felt abandoned by his father however he did not make any attempts to reach out to him.

The respondents, in defending the claim, placed a significant amount of emphasis on the fact that Casandra and Peter had been estranged from their father for a very long period of time, over 30 years.

In looking at the relevance of estrangement the court looked at the decision of Wentworth v Wentworth, Estate of GM Wentworth (Unreported 14 June 1991), which included the following:

‘I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person ….’;

‘A whole view of the relationship and the character and conduct of both parent and child should now be undertaken, and the influence of character can be complex.’ 

Whilst the court noted that the lengthy period of estrangement is relevant to the decision, Casandra and Peter’s conduct did not disentitle them to the benefit of an order for provision in the estate.

In reaching a decision District Court Judge, His Honour Devereaux SC stated:

“I am satisfied the applicants have demonstrated that inadequate provision was made in their father’s will for their proper maintenance and support in all the circumstances. They had a claim on their father’s estate, whether it be described as moral, natural, legitimate or by some other term.”

The court awarded Casandra, $400,000.00 and Peter $350,000.00.  Casandra was awarded more than Peter, due to her attempts to contact and reach out to their father.  His Honour explained that the amounts were designed to provide sufficient equity for each child to borrow the balance to purchase a modest property while keeping an amount aside for contingencies.  This left approximately $1.1 million (not taking into account the costs of the proceedings) to be distributed proportionally according to Mr Wright’s testamentary wishes.

Would things have been different if the estrangement was caused by the children? (For example, had Mr Wright wanted to maintain a relationship, but his children pushed him away?)

Generally, where estrangement has been caused by the child for a significant duration of time, with no reconciliation prior to the parent’s passing, any provision made to the child will be a modest one.  However, where estrangement has been caused by the parent, the court is not likely to consider the estrangement to be a mitigating factor which would impact on a child’s claim.

Family provision claims involving estranged relationships and, on the other hand, strategic planning to protect your estate from these claims is a complex area of succession law.  If you feel that you have been unfairly left out of a will, or would like advice on ways to help reduce the risk of such a claim being made against your estate, please do not hesitate to contact me so that you can start 2018 with the peace of mind in knowing that your affairs are in order or being looked after.

For more information about this issue and all will and estate planning matters, please contact our Associate, Bianca Stafford on 07 4036 9700.

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