We are often asked by clients what they can do to reduce the risk of challenge to their Will.
We see many cases where parents have been estranged from their children, or one child has particularly supported parents in old age. These parents often wish to provide more for one child than other in their Wills.
As a starting point, we have “testamentary freedom” under Australian law. This means we can give our assets however we want after death. However, each State has laws which limit this freedom by requiring proper provision for eligible family members. This is referred to a “family provision” claim in Victoria, under Part IV of the Administration & Probate Act, and is based on the obligation to fulfil a “moral duty”.
But what about the case of an estranged child? Is it proper to leave them out, or give them less in your Will?
In general, the answer may be yes. Courts hearing family provision claims are required to have regard to the totality of the relationship, but unusual factors such as hostility, estrangement or other disentitling conduct are given additional weight. However, as the following case demonstrates, estrangement is just one factor. and may not be decisive.
Joss v Joss was a claim by an adult daughter, Jessica, from the estate of her very wealthy father. The deceased, Peter Joss, died aged 93 leaving his surviving wife Judith and a son Ronald. His estate was valued at $12.4m, but that appears to have been a fraction of the overall family wealth, as no other family member claimed competing need. Judith was the sole beneficiary of his Will.
Jessica identified as a transgender female. She had a traditional Jewish upbringing and a close relationship with her parents as a child. She began identifying as female at the age of 10 but did not talk about her gender dysphoria with her parents. She had no friends at school and was expelled twice. She was depressed, prone to violent anger, lied and stole from her parents on several occasions, but refused to see a psychiatrist.
Despite this Jessica maintained a relationship with her parents. She worked in her father’s office during University holidays. In 1984, at age 25, she found a job in Sydney and her parents furnished an apartment for her. She moved to London in 1986, saying she was not coming home again, but returned to Melbourne in 1987. Again, her parents furnished an apartment for her. However, in 1987 she sought a move to Germany, which deeply upset her father and he did not speak to her for 2 years. Nevertheless, her father continued to provide financial help to her, including legal costs of divorce and immigration proceedings in the USA in the 1990s. Around this time, she revealed her gender identity to her family.
Jessica ultimately returned to Melbourne. Her family bought her an apartment and gave her a job in their business. In 1998, she began receiving $500 per month from her father. In 1999, aged 40, Jessica began taking feminisation hormones and quit her job, which was the last time she had been in paid employment.
By this stage, Jessica began making increased demands from money. She sought to have her parents pay for her gender reassignment surgery, which they refused to do. A number of further incidents, offending and embarrassing her family, ultimately led to her parents ceasing to have contact with her. This in turn led to Jessica threatening to kill herself, and acquiring a cross-bow with plans to kill Peter at their Synagogue. She was admitted to hospital and diagnosed with mixed personality disorder.
Her parents took out an intervention order against Jessica. However, her father still paid her legal costs of that proceeding. Over the following years, despite not seeing her father, he also paid off her credit cards, bought her a car, gave her $6,000 to move residences, and continued to pay her a weekly allowance (which increased to $1,600 tax free).
Jessica sought provision of $5.56m at trial (having offered to accept $2.5m before trial). In opposition to her claim, the Estate submitted that the estrangement and Jessica’s plans to kill her father nullified his moral duty to her. However, the judge did not accept this submission. Whilst her conduct reduced the extent of the moral duty, the judge found Peter still had a moral obligation to provide for her. This stemmed from the fact that Jessica had been wholly maintained by her father since at least 1999, and this meant she had become unable to provide for herself.
The judge awarded Jessica a sum of $3.225m. This represented provision for all of Jessica’s needs, given that the estate was very large, and there were no competing needs. The amount was broken down as follows:
- A capital amount of $2.4m, to provide a secure income at the same level of her allowance ($1,600 per week), for Jessica to invest as she chooses.
- Funds for secure an appropriate accommodation – although Jessica wanted a minimum of $1m, the judge found $600,000 was adequate to purchase a modest apartment, and $25,000 to furnish it.
- $100,000 for gender reassignment surgery & associated medical costs.
- $100,000 for miscellaneous items.
In summary, it appears that the estrangement had minimal impact. The judge did not allow for a lavish house, upmarket furniture, or travel-related expenses connected with having surgery in Sydney, which arguably could have been awarded for the estrangement. However, the key feature of the case was the extreme family wealth and extent of Jessica’s reliance on it. Where the estate is smaller, or there are competing needs, then estrangement of a claimant remains a highly relevant factor.
How we can help
For more information or advice on reducing the risk of challenge to your Will, please do not hesitate to contact us.
 VSC 424 (Hollingworth J)