In the court of public opinion, the commandment ‘honour thy mother and father’ can be hard to beat. In a Court of Law, every case bringing a claim against the estate is considered on its own facts and merits. In this article, Attwood Marshall Lawyers Estate Litigation Associate, Martin Mallon, reviews the case of Crawford v Munden, where a son, who was estranged from his mother for 16 years, was left out of her Will. Despite the extended estrangement, the son was eligible to make a claim for further provision. Here’s how the case played out.
Introduction
The New South Wales Supreme Court decision of Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463, highlights the matters considered by the Court in determining a claim for further provision by an adult child of the deceased involving estrangement. In this case, the Court awarded an adult child who had been estranged from his mother for 16 years the sum of $150,000.
Ms Angel passed away on 7 June 2018 from pancreatic cancer. She was survived by her 58-year-old son, Glenn Crawford. The net distributable estate at trial was $435,942.50.
Ms Angel left a Will leaving her entire estate to her niece Lisa Munden, to the exclusion of her only surviving child.
On 15 May 2019, Ms Angel’s son made a claim on the estate pursuant to family provision legislation. For anyone contesting a Will, eligibility must be proven. As a child of Ms Angel, Glenn was eligible to apply for a family provision order.
What were the issues in this case?
The key issues in this case was Glenn’s credibility and his 16-year estrangement with his mother. It is noted before the estrangement Glenn and Ms Angel had a close and loving relationship for 40 years.
In summary, the estrangement between Glenn and Ms Angel stemmed from an incident in 2002 at Glenn’s 40th birthday. There was conflicting evidence about what happened at the incident, but the Court was satisfied that Glenn’s behaviour in deciding not to invite his mother to his birthday celebration was the cause of the estrangement. This estrangement continued for 16 years.
The Court rejected Glenn’s submission that there was an equal amount of stubbornness from both sides.
From 2002, Glenn did not attempt to reconcile with his mother. He only reconnected with her shortly before her death when he was informed of her terminal cancer, despite her objection.
Ms Angel attempted to reconcile with Glenn, but she was rebuffed. The Court was of the view that Glenn’s behaviour was the cause of the ongoing estrangement.
The Court held that Glenn was an unsatisfactory witness and was unreliable.
What other matters needed to be considered?
Although the Court held that Glenn had legitimate future financial needs, his current situation was comfortable and stable. He and his wife owned their own house outright and had savings in the bank.
Lisa, Ms Angel’s niece, did not disclose her financial circumstances. A Court will usually draw inferences that a party who fails to disclose their financial position do not have need.
Ms Angel had a close relationship with Lisa who was her primary carer following her diagnosis with cancer.
The Law
If a child contests a Will, a Court will weigh up the child’s need for provision from the estate by determining what moral duty the parent had to provide for their child.
The Court will examine all relevant circumstances, including but not limited to:
- the relationship between the applicant and the deceased person;
- any obligations or responsibilities owed by the deceased person to the applicant;
- the value and location of the deceased person’s estate;
- the financial circumstances of the applicant, now and in the future;
- whether the applicant is financially supported by another person;
- whether the applicant has any physical, intellectual or mental disabilities;
- the applicant’s age;
- any contribution made by the applicant to increase the value of the estate;
- whether the deceased person has already provided for the applicant during their lifetime or from the estate;
- whether the deceased person provided maintenance, support or assistance to the applicant;
- whether any other person is responsible to support the applicant;
- the applicant’s character and conduct;
- any other claims on the estate; and
- any other matter that the Court determines is relevant.
General principals to be considered with respect to estrangement
His Honour Hallen J in Nielsen v Kongspark [2019] NSWSC 1821 recently set out the general principles to be considered with respect to estrangement between the deceased and an application for further provision. In the Crawford v Munden case, His Honour adopted Hallen J’s reasonings:
“(a) The word “estrangement” does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
It has been established law that estrangement between a parent and child, does not automatically disentitle a child from bringing a claim for further provision from the estate (Palmer v Dolman [2005] NSWCA 361). The Court will review all the circumstances and facts of the matter.
The Decision
The Judge in this case took the following into account in arriving at an amount for provision (in no particular order of importance):
- For most of their life together, Glenn and Ms Angel enjoyed a close loving mother-son relationship;
- Lisa (Ms Angel’s niece) had a strong moral claim to benefit from the estate despite her electing to not put her financial position forward;
- The net distributable estate at trial was small/modest;
- Glenn’s current and personal circumstances were relatively good although he has limited earning capacity and will likely retire in a few years;
- Ms Angel’s intention was to remove her son and grandchildren from her Will in favour of her niece and had a strong rational for doing so.
Taking the above matters into account and setting aside the issue of estrangement, His Honour concluded that a wise and just testator would have recognised that she had an obligation for two people; her only biological son and Lisa.
His Honour formed the view that this is a case where an equal division of the estate would result in the provision that ought to be made to Glenn. This would equate to $218,000. However, in exercising the Court’s discretion with respect to the estrangement and Glenn’s responsibility for it, a reduction of slightly less than one third of what he might have received was ordered.
The Court ordered further provision for Glenn’s maintenance in the sum of $150,000.
The parties were to be heard with respect to the issues of costs.
Conclusion
This case serves as a reminder that estrangement between a child and parent does not exclude them from obtaining an order from the Court for further provision from an estate. Each case is decided on its own facts and there is no ‘one size fits all’ approach when it comes to family provision claims.
Have you been left out of a Will?
If you have been left out of a Will, or feel you have been inadequately provided for, you can take these simple steps to make a claim:
Step 1: Contact Attwood Marshall Lawyers Estate Litigation team for a free 30-minute consultation to discuss your matter. From this conversation our lawyers can ascertain your prospects of success and a preliminary view on your likely range of award.
Step 2: We will send you the relevant retainer and costs disclosure documents and explain what the process is moving forward.
Step3: Your lawyer will gather evidence and attempt to resolve your matter with the Executor or Administrator at an early stage. This includes placing the Executor on notice of your intention to bring a claim for further provision from the estate to protect your interests.
Step 4: If we are unable to resolve the matter with the Executor or Administrator, we will file formal Court proceedings. In most instances, the matter will be resolved at mediation, usually before trial.
We want to help you get what you’re entitled to
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this area. With offices located in Brisbane, Robina Town Centre, Coolangatta, Kingscliff, Sydney and Melbourne, you can make an appointment at a location most convenient to you.
Will disputes and Succession Law can be extremely complex. The law differs between states and territories. Having an expert Estate Litigation and Will dispute lawyer who has industry leading knowledge and local experience on your side, can help you achieve a positive outcome in the most cost-effective way.
Most cases are accepted on a ‘no win, no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).
