The impact of estranged relationships in bringing a Family Provision Application

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The District Court of Queensland recently handed down a decision in the matter of Wright v Wright [2016] QDC 74 dealing with an application for a Family Provision order made by two adult children after they were not included in their father’s will.  The children’s relationship with their father was marked by a lengthy period of estrangement.  The Court was required to consider there had been an inadequate provision for the proper maintenance and support of the children.

Background to Family Provision application

The deceased, Keith Wright, left the proceeds of an AMP Superannuation Policy (about $630,000) to the Australian Charity, the Royal Children’s Hospital Foundation and the residue of his estate to his two siblings.  The present value of the estate was in excess of $1.7 million.  No provision in the estate was made by the deceased for his two adult children.  His children, Casandra and Peter Wright (the applicants), made an application under s 41 of the Succession Act 1981 (Qld) for provision from the deceased’s estate to be made to them.

Section 41 of the Succession Act provides that if a person dies, and adequate provision is not made from the estate for the proper maintenance and support of (inter alia) the deceased’s children, on the children’s application, the Court may exercise its discretion in ordering that  provision be made for them as the Court thinks fit.

Issue – Estranged relationship

Were the applicants entitled to provision from their father’s estate for their proper maintenance and support in light of their estranged relationship?

Findings

When exercising its discretion, the Court assessed:

  1. Whether in the circumstances no provision was inadequate provision for the proper maintenance and support of the applicants in all the circumstances (at [5]); and
  2. If so, “what is a proper level of maintenance and support” (at [6]).

The Court referred to the decision of the High Court in Vigolo v Bostin (2005) 221 CLR 191 where Callinan and Heydon JJ elaborated on the meaning of ‘proper maintenance and support’:

  • ‘Proper’ invites consideration of all the relevant circumstances (at [114]);
  • ‘Maintenance’ may imply ‘continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency upon which to live’ (at [115]);
  • ‘Support’ ‘similarly may imply provision beyond bare need (at [115]).

The Court considered in great detail the relevance of the estranged relationship between the deceased and the applicants, and noted that in the case of larger estates, a “more liberal assessment of the moral duty owed” by the testator may be allowed (at [12]).  The judge cited Bryson JA in Estate of GM Wentworth (Unreported 14 June 1992) where His Honour reasoned: “I do not regard the state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person.”

In the current circumstances, the deceased had been in the Navy for 20 years and as a result had not spent much time with the applicants.  The applicants had lost contact with their father in around 1979, following his separation with their mother.  Both applicants were of good character but had not been financially successful.  Casandra had experienced difficulties with ill health suffering from psychological disorders including depression, anxiety, an eating disorder and obsessive compulsive disorder.  Casandra had taken steps towards reconciliation with her father but her attempts at contacting him were unsuccessful.  There was also little information available to discern the deceased’s attitude towards the estrangement other than that the mention of his children made him upset and he felt that his children did not want anything to do with him.  The Court noted that it seems that “each side of [the] parent/child divide felt abandoned by the other” (at [37]).  However this evidence did not provide substantial understanding as to the exclusion of the children from the Will.

In considering the competing needs between the applicant and the beneficiaries, the Court considered their health and financial circumstances.  The beneficiaries themselves both suffered from ongoing health problems and were by all appearances living on modest incomes.  The beneficiaries both had a good relationship with the deceased.

However having considered the circumstances, the Court decided that the applicants had not engaged in any disentitling conduct.  The Court held that had the deceased been aware of all the circumstances of his children, it would have been wise for him to have included provision for them in his Will.  Given the significant size of the estate, there would still have been ample gifts remaining for his siblings and chosen charity.

His Honour made the award of $400,000 to Casandra Wright and $350,000 to Peter Wright.

Wrap-up

Where an estranged relationship existed between a testator and the applicant in a Family Provision application, the conduct and nature of the parties to the estrangement is a key consideration in the determination of whether an applicant is entitled to the benefit of an order for further and better provision from the estate.  Here the applicants were of good character and a mutual feeling of abandonment seemed to be the reason for the estranged relationship.  The Court therefore considered that the testator owed a moral obligation to ensure that his children were provided for in some way.

For more information regarding a Family Provision Application

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