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Adult children in Succession Act claims

Family provision matters under the Succession Act always generally involve the competing interests of an individual’s right to testamentary freedom (ie that a person should be free to distribute their estate as they see fit) and the moral obligation to make provision for those in close personal relationships to the deceased, especially for children.

Cases where the children are adult, and estranged from the parent add to this complexity, as does explicit statement of intent to exclude contained in the will.

A recent decision of the Supreme Court in Jodell v Woods [2017] NSWSC 143 considered these issues.

Background

Under the Succession Act 2006 (NSW), the Court may deal with an application from an “eligible person” in respect of an estate if that person believes that they did not receive adequate provision under a will.  The classes of eligible persons are small and defined, and are:

(a) A husband or wife of the deceased;

(b) A person in a defacto relationship with the deceased;

(c) A child of the deceased;

(d) A former wife or husband of the deceased;

(e) A person who was a dependant of the deceased and who was a grandchild or a member of the deceased’s household; and

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

Parents and siblings are not eligible persons unless there were also, at some time dependent on the deceased and a member of the deceased’s household, or were in a “close personal relationship” with the deceased.  The Court has no power to expand the list of eligibility.

The law permits the Court to essentially vary the bequests of deceased persons so as to provide for the  “maintenance, education or advancement in life of an eligible person”.   This process is generally understood to involve two steps: firstly the Court determines whether an eligible person has not been provided with “adequate provision for his or her proper maintenance, education and advancement in life”.  If the answer to this question is yes, the Court then determines what provision ought be made in favour of the eligible person.

Jodell v. Woods

Jodell v. Woods involved an application by Winifred Jodell, in relation to the estate of her late mother, Clarice Woods.  At the time of the application Ms Jodell was 74 years old.  Her sister, the late Mrs Woods only other child was 66 years of age.  Their mother had died at the age of 99.

The late Mrs Woods had left an estate worth a little more than $2 million comprising primarily a house in Turramurra.  In her will, Mrs Woods left her entire estate to younger daughter and had excluded Ms Jodell from the will completely.  Ms Jodell and her mother were estranged and, aside from a meeting just before her mother’s death, had not spoken in almost 20 years.  There had been some efforts by Ms Jodell to maintain contact, however, these had not been reciprocated by her mother.

Ms Jodell was of relatively modest circumstances.  She owned a home in country Victoria on which there was a reverse mortgage.  Her income was the age pension.  She sought sufficient additional provision from the estate to enable sell her home and move to Melbourne, and to live comfortably.

The Court ultimately made an order for provision in Ms Jodell’s favor of $425,000.  The Court identified this as  enough to repay the mortgage and other debts, and to provide a further buffer for the exigencies of life, “which, until spent, will also provide a modest additional income to meet her current shortfall and provide a little more“.

The Court identified the following principles:

  1. 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.
  2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”:.
  3. Generally, also, “the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”:
  4. If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd, at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons:
  5. There is no need for an applicant adult child to show some special need or some special claim.
  6. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: . Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant:  In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
  7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
  8. Consistent with previous cases, that the fact of the estrangement should not be over emphasised in its considerations.  The circumstances of the estrangement will be a relevent consideration is determining appropriate provision, but not determinate.
  9. The task of the Court is not to render a will fair, or to change a will so that siblings are treated equally.  The Courts task is limited to ensuring appropriate provision for eligible persons.  Similar to this conclusion, in Blore v Lang, the High Court said:

‘The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case …  Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made – for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same.

The decision shows the complexity of claims involving adult children, and the balancing considerations examined by the Court.

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