There is a common misconception that the law disregards a family provision application brought by an estranged child, especially in circumstances where there has been no contact for a long period. In the recent decision of Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463, a family provision order was made in favour of an estranged child even though there was a 16-year period of no contact. This recent decision reinforces the principle that a parent’s obligation to their child is not reduced because of estrangement or a bad relationship between parent and child.
Facts
The deceased, Janet Anne Angel, died on 7 June 2018 from pancreatic cancer. Prior to her passing, Janet had executed a will dated 16 August 2012 which left the entirety of her estate to her niece, Lisa Anne Munden and her niece’s husband, Mark John Munden (the Defendants).
The Will made no distribution to the Janet’s only son, Glenn Crawford, who was aged 58 years old, and whom she had been estranged from for nearly 16 years. This meant that under the will, Glenn was not entitled to any share of Janet’s estate.
Glenn lodged an application for a family provision order against his late mother’s estate on the basis that he had not been adequately provided for under the will. As Glenn was the deceased’s only child, he was eligible to apply for this order in the Supreme Court of NSW.
Relevant Issues
In determining the application, the Court had to take into consideration several factors. This included whether the will made adequate provision for Glenn’s proper maintenance, education and/or advancement in life, as well as the relevance of the estrangement and relationship between Glenn and Janet prior to her passing. Part of this process required the Court to consider Glenn’s personal and financial circumstances, which included the following:
- Glenn’s financial and personal circumstances were relatively good. He owned his own home without encumbrance and had few debts. He had a modest income and was able to meet his daily living expenses. He appeared to be accumulating a modest surplus, with plans to retire in the next 4 years.
- Glenn and his wife (Annemaree) had no health issues.
- Glenn had three children, all of which had maintained a good relationship with their grandmother Janet prior to the estrangement between Janet and Glenn.
- For a period of 16 years prior to Janet’s death, Glenn had little to no contact with his mother because of a family incident which occurred in 2002.
- During that 16-year period, the Court was told that Janet had made attempts to reconnect with her son and his family, however all her attempts at reconciliation were rebuffed by Glenn. It was not until Glenn was made aware of Janet’s terminal illness, did he attempt to mend his relationship with his mother.
- During the period of estrangement, and leading up to her passing, Janet’s mental health was affected, and influenced the way in which she distributed her estate.
In addition to the above, the Court also considered the personal and financial circumstances of the other beneficiaries, as well as their relationship with the deceased and whether this would have impacted the way in which Janet would have chosen to distribute her estate. Lisa’s long and close daughter-like relationship with Janet, as well as the fact that she was Janet’s primary carer, gave Lisa a strong claim to Janet’s estate.
Decision
After considering of all these circumstances and the evidence of all parties, the Court ruled that the will did not make adequate provision for Glenn’s proper maintenance or advancement in life. While it was considered that Glenn had few specific needs because of his financial position, as the deceased’s only child, the Court took the view that Glenn should be regarded as a “natural object” of his mother’s testamentary bounty.
The Court formed the opinion that Janet, as a wise testator, should have recognised that she had an obligation to two people: (1) her only biological child, Glenn, and (2) Lisa, who over the years had assumed the position of a daughter and cared for her.
In His Judgement, Chief Justice Kunc adopted the same principles held by Chief Justice Hallen J in the decision of Page v Hull-Moody and said that [176]:
“The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.”
His Honour acknowledged Glenn’s relationship with his mother up until the date of death, however he also considered the general principles regarding the issue of estrangement which was recently examined by Hallen J in the matter of Nielsen vKongspark[2019] NSWSC 182. His Honour at paragraph [154] considered the following reasons set out in Justice Hallen J’s decision at parapragh [233] of that judgment:
The word “estrangement” does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case.”
Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in “normal” parent/child relationships, during those years, is a relevant consideration.“
The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made.”
In his judgment, Chief Justice Kunc stated [at 175]:
for the purposes of either stage of the inquiry the estrangement, while tragic and serious, was not of a kind that in and of itself extinguishes Glenn’s moral claim to be the object of his mother’s testamentary bounty.”
Despite the fact that Glenn was an adult child without significant financial or physical challenges, and that there had been a significant period of estrangement, His Honour was of the view that Glenn should have received an amount for the future vicissitudes of life from his mother’s estate.
His Honour considered that in the ordinary course of the provision, Glenn would have been awarded half the value of the Estate (which would have been around $218,000). However, in light of the issues considered by the Court, the amount Glenn received was reduced because of the nature of his relationship with his mother and his responsibility for the estrangement. His Honour instead ordered that he receive the sum of $150,000 from the estate.
If you have been left out of your parents will, or you do not believe the amount you have been left with is adequate, then you may have grounds to challenge the will. Our experienced team at Lionheart Lawyers will be able to advise you on your legal rights in the event that you may wish to contest a will.