More adult children's family provision claims denied

This week, the Court (Kunc J) refused the claims for provision made by two adult children of the deceased in Beech v Squire [2018] NSWSC 59. It is the second such judgment in one week to reach the same conclusion with respect to the claims of adult children seeking provision.

Facts

The claimants, Claire (aged 38) and Paul (aged 35) are the adult children of the deceased from his first marriage.  He died (unexpectedly) at age 64.  About 20 years prior, he had remarried Corinne, the Defendant (aged 57).  Just months prior to his death, he had separated from Corinne and lived with Claire. 

The deceased's will, made about 10 years prior, remained unchanged, despite his separation from Corinne. Under it, he left his entire estate to Corinne.  No provision was made for his children or grandchildren.

Just prior to death, Corinne and the deceased had sold their home in Sydney for $960,000 but completion had not occurred by the time of his death.  His share of the house passed to Corinne by survivorship and was valued at $250,000.

The estate was small. It was insolvent by about $50,000. The children’s claims depended on orders for the notional estate, being the proceeds of the property.  Both children claimed an amount of $85,000.   Kunc J considered it a 'very important factor' that the estate is small.

Law

The threshold question for the Court to decide was whether adequate provision was made for Claire and Paul for their maintenance, education or advancement in life. The Court approached this question from the multi-faceted evaluative approach.  Reference was made to Verzar v Verzar [2014] NSWCA 45, in which Meagher J summarised the applicable legal principles and the dictum that the inquiry as to whether 'proper' provision has been made requires 'regard to all the circumstances of the case'. More recently this was emphasised by the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 which also drew attention to the importance of the testator’s intentions as manifested in his or her will.

His Honour Justice Kunc also adopted what Hallen J said in Camernik v Reholc [2012] NSWSC 1537, both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children, including:

• The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
• It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child...The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they 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: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
• The community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary 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 if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent 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: Taylor v Farrugia [2009] NSWSC 801.
• 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] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].
• There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee[1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.
• 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: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. 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: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].
• 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.