Effect of Financial Dependency in Wills Disputes

There is no legal obligation for a parent to look after a child into adulthood and beyond.

However, where a child becomes financially dependent on their parent during adulthood, it can give rise to a moral obligation for the parent to continue to fulfil that dependency after their death, via their Will. If a parent subsequently breaches this obligation, the disappointed child can bring a ‘family provision’ claim against their estate.

Such a claim is possible even where the relationship between parent and adult child is otherwise extremely poor, or estranged, as in the recent Supreme Court decision of Joss and Joss1, which involved a family provision claim by an adult daughter of the deceased father.

Case study: Joss vs Joss

In Joss, the relationship between the father and his daughter was dysfunctional and involved a lengthy period of estrangement. At one stage, the daughter even threatened to kill her father and had acquired a cross-bow for that purpose. Despite his daughter’s conduct, the deceased continued to maintain her financially during her adulthood. He provided her with a generous weekly allowance that meant she did not need to work, and paid for almost everything she needed.

In other circumstances, a threat to kill might have been held to amount to ‘disentitling conduct’, wherein a Court may determine that a parent is justified in leaving no or minimal provision for a child claimant.

For instance, Australian courts have previously held that a child who is violent towards their parent cannot expect to be provided for in their parent’s will, or to claim for further provision from their estate2.

Yet, in Joss, the daughter was successful in obtaining further provision valued at $3,225,000 from her father’s estate, given the extent of the financial dependency at play, amongst other matters.

The Court held that in financially supporting his daughter to the extent he did, the father allowed her to become financially dependent on him and lose much, if not all, of her capacity for employment. In the circumstances, neither their estrangement nor the daughter’s conduct towards him was sufficient to extinguish the father’s moral obligation to provide for her.

Key lessons

Willmakers may believe they are justified in leaving minimal provision for a child due to the significant benefits they have already provided them during their lifetime. However, the reality is that the consistent payment of such benefits may in fact increase the moral duty they owe their child, particularly where it has engendered financial dependency.

Joss illustrates that financial dependency can also act to diminish the impact of conduct that may otherwise disentitle an adult child from making a family provision claim.

Where factors such as these are at play, it’s crucial that a willmaker receives specialised legal advice about their options.

How we can help

Our expert team can assist you with Disputes relating to Wills, Estates, Trusts and SMSF as well as provide strategic advice for complex family provision claims. For more information or guidance, please do not hesitate to contact us.

1 [167] VSC 424
2 See Christie v Christie [2016] WASC 45