Testator s Family Maintenance Claims: Estrangement. Kieren Mihaly Barrister

Transcription

1 Testator s Family Maintenance Claims: Estrangement Kieren Mihaly Barrister

2 1. It is not uncommon for a testator to write someone out of their will. Sometimes that exclusion is the result of long-term animosity and sometimes it is the result of spite. It is obvious therefore, that the defensibility of such conduct must be assessed on a case-by-case basis. 1 But at some point, regardless of the biological relationship between a child and parent or the legal relationship between partners, common sense dictates that such relationships must be considered irrelevant; in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, the High Court sensibly rejected an application where there had been no contact between the testator and the claimant for over 40 years. Colourfully, excluding a child from a will has been explained as acceptable where one treats 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 But despite the above and the freedom of testation, it is very difficult for a testator to exclude someone from their will. Conceptually, exclusion is reserved here as a term for those to whom a testator may have a responsibility to make adequate and proper provision; in the absence of a possible responsibility, the testator was not excluding that person, but was instead simply not making provision voluntarily. Whether an exclusion is effective has been the subject of numerous cases and much precedent, but despite that, any case involving exclusion still requires only the application of Part IV of the Administration and Probate Act 1958 ( Act ). And like much of the authorities under the Act, estrangement turns on the specific facts of a given case such that there is no definitive basis for asserting that an estranged person was or was not owed a duty by the deceased For the avoidance of doubt, the concepts in this paper build on those previously stated in my paper entitled Testator Family Maintenance: General Principles. Role of Exclusion in the Assessment of a Testator Family Maintenance Claim 4. Whether an exclusion is effective is the equivalent of asking whether the excluded would fail in an application under Part IV of the Act. Only where they would be unsuccessful has the testator not breached their obligations to the excluded by their exclusion. Thus: It is now well recognised that in determining the strength of the moral claim of an adult child upon its parent, and correspondingly the measure of proper maintenance to be provided by a testator in all the circumstances, it is proper to take into account the conduct of the claimant towards the testator and their mutual association and the closeness of the bond existing between them. 4 1 Alabakis v Alabakis [2012] VSC 437, [30] 2 Malone v Range [2012] NSWSC 1032, cited with approval in Brandon v Hanley [2014] VSC 103, [24] 3 Morris v Smoel [2014] VSC 32, [70] 4 Re Buckland [1966] VR 404, 413

3 5. And by way of conclusion it has been expressed that: an estrangement, particularly in later years, of the plaintiff from the deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely Yet, the role of estrangement is not as clear cut as that. In Collicoat v McMillan, 6 while Ormiston J agreed that the behaviour of the excluded towards the deceased provided a basis for measuring the testator s obligation towards them, he went on to say that: [t]heir sins are irrelevant except in so far as a testator might properly take exception to their behaviour. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances. What is right and proper, and thus what the wise and just testator must do, is not determined by the character and conduct of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected the testator that he or she is in good conscience entitled to make a lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances And likewise in Palmer v Dolman 8 it was observed that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement of the Act On that basis, estrangement involves asking whether the relationship between the excluded and the deceased was akin to strangers or acquaintances of no mention. When the question is so expressed, the critical issue becomes clear; has the relationship, previously of the sort requiring a bequest, deteriorated enough to absolve a testator of all responsibilities they may once have had to a person. 5 Brown v Macauley [1999] WASC 208, [19] as cited with approval in Valentini v Valentini [2014] VSC 91, [49] 6 [1999] 3 VR Collicoat v McMillan [1999] 3 VR 803, [2005] NSWCA 361, cited with approval in Brandon v Hanley [2014] VSC 103, [24] 9 Palmer v Dolman [2005] NSWCA 361, [110]

4 Testator s Reasons 9. The reasons of the testator for the exclusion are very relevant. But, as those reasons cannot override the Act, 10 the reasons likely only provide an explanation of the testator s conduct. 11 However, by reason of s 60 of the Evidence Act 2008, the reasons may be admitted as proof that those reasons were valid, although it is doubtful that much weight will be placed upon those reasons. 10. It can therefore be expected that it is difficult to prove estrangement as there will likely only be one person able to give first hand evidence of the conduct said to give rise to the estrangement. Cause of Exclusion 11. Even where the estrangement has been significant, an excluded person may still warrant provision from a deceased where the estrangement was not their fault. True, a plaintiff who has distanced themselves from the deceased is far more likely to have absolved the deceased of a moral responsibility towards them. But conversely, a testator cannot substantiate the absence of a responsibility on death to the excluded by pointing to their earlier breach of their responsibilities to the excluded while alive. 12. Further, much like the chicken and the egg, it must be determined as best as possible who was primarily responsible for the poor behaviour of the excluded and the deceased to each other. In Valentini v Valentini [2014] VSC 91, after finding that the Deceased failed in his parental duty 12 and that his children were the victims of that failure, 13 the court concluded that: [t]his places the conduct of the children towards their father, and their consequential estrangement, in a unique position and works in this case to very substantially mitigate the Applicants neglect of their father which might otherwise have been of greater weight in a consideration of their Applications Thus in Greely v Greely [2011] VSC 416, the Court was faced with the unusual situation of a deceased being estranged from most of her children. On that basis, the Court was not prepared to attribute fault for the estrangement to any given Applicant and largely dismissed the estrangement as a relevant factor. 15 Likewise, in Alabakis v Alabakis [2012] VSC 437, the court placed limited weight on the estrangement between the applicant daughter and the deceased where the estrangement began while the applicant was a teenager and she witnessed violent conduct by the deceased towards his son, her brother. 10 Morris v Smoel [2014] VSC 32, [74] 11 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, Valentini v Valentini [2014] VSC 91, [51] 13 Valentini v Valentini [2014] VSC 91, [51] 14 Valentini v Valentini [2014] VSC 91, [51] 15 Greely v Greely [2011] VSC 416, [70], [84]

5 Conclusion 14. The exclusion of a family member from a will is not uncommon. An estate will usually have difficulty defending that exclusion except in the limited situation where the estrangement was very significant, extended over a long period of time and was due, in a large part, to the conduct of the applicant. In almost all other situations, the exclusion will likely be in breach of the testator s obligations. 15. However, even where the exclusion was inappropriate, a partial estrangement will be relevant to the proper level of provision due. If estrangement is considered a sliding scale, where total estrangement disentitles an applicant, partial estrangement will limit a testator s obligation. Of course, the reality is far less mathematical than that, but such an approach appropriately recognises the diminishing obligation of a testator to those with whom they have become estranged. 16 July 2014 K Mihaly Owen Dixon Chambers West