In a recent claim before the Victorian Court of Appeal in June 2016 (Edward Jones v Constance Smith), Constance, the 63 year old daughter of the late Abigail, together with her son, Abigail’s grandson David, were successful in an Application against Abigail’s deceased estate for additional provision to be made out of the estate for their maintenance and support.
The evidence showed that Constance had been sexually abused, as a teenager by her late father (Abigail’s husband) and that later, her father had sexually abused Constance’s son, his grandson, David when only four years old. Abigail had spoken to her husband about this but otherwise did nothing. She had told Constance – “I stayed with him for your sake” and “this (her estate) will be all yours one day”.
The impact on both Constance and her son David had been devastating and was ongoing, with significant adverse impacts on their lives and mental wellbeing, requiring ongoing treatment.
In 2005/2006 David had confronted his grandfather and had also reported him to the Police. As well as that he took proceedings against him. However the grandfather died shortly thereafter, in 2007.
Abigail’s estate was worth about $6,000,000, most of it having devolved upon her on the death of her late husband.
Abigail had previously told Constance that she and her two brothers would be equal beneficiaries in her Will. However, in Abigail’s Will, Constance received only 21%, with her brothers receiving 27% and 52% respectively. The Will had expressly stated “I have provided less in this my Will for my daughter as I consider that more than adequate provision has been made for her by me and my husband during my lifetime… I make no provision for my grandson as I consider that I have no duty or moral obligation to provide for him”.
Constance and her husband’s assets, including their home, were worth approximately $5,000,000.
Abigail’s Will had been made sometime after her grandson David had reported his grandfather’s conduct to the Police, with the support of his mother, Constance. In this last Will, Abigail had provided less for Constance than in her earlier Wills when Constance and her siblings were treated equally. In the Judge’s view, Abigail was punishing Constance because Constance had broken her silence about her father’s abuse.
The Court considered various factors relevant to the dispute including –
- The moral duty of the Testator and what a “wise and just” Testator should have done;
- That there is no requirement that parents treat their children equally;
- Although promises made and the raising of expectations about a future inheritance are not binding, they are relevant when considering what a wise and just Testator would have done and although a Testator is free to dispose of their assets as they wish, the family maintenance obligation “sits somewhere between the realms of legal liability and moral liability”. In the circumstances, the statements and promises made by Abigail “significantly colour and enhance the deceased’s moral responsibility to Constance”;
- Establishing “need” is an essential requirement in these claims. However the question of need is relative, as is the question of whether the provision made is adequate for the proper maintenance and support of Constance. Her assets and income are only two facts which go into the “melting pot” in determining the question of adequate provision;
- The fact that Constance and her son had been sexually abused had led to Constance having a significantly greater financial need than may otherwise have been the case.
This is not the same as Compensation or Damages
Importantly the Court observed that the family maintenance provisions do not create a means of obtaining compensation or damages for a wrong done to a person by the Testator or a wrong for which the Testator bore some blame – although the conduct of the Testator might explain why the Claimant has a particular financial need. Constance was not being compensated for a wrong doing by Abigail or her husband, rather the deceased estate was responding by providing the necessary financial support that Constance and her son required. The Court went on to say that “the effect that the sexual abuse had on Constance only serves to heighten the moral obligation that the wise and just Testator would be under to provide for a daughter such as Constance”.
In the result the Court supported the allocation of a larger share of the estate to Constance as well as the allocation of the sum of $175,000 to her son David.