In the case of Jones v Smith [ 2016] VSCA 178, Constance, was the applicant and the adult daughter of John and Abigail. John predeceased his wife and his estate assets passed to Abigail by survivorship upon his death. Abigail, by her prior wills, had left her estate among her children equally; her last will divided her estate unequally between her 3 children resulting in a 52% share to her son Phillip, a 27% share to her son Edward and a 21 % share to her daughter, Constance. The estate value was approximately $6 million.
Abigail’s will read of her reasons for leaving her daughter less in her will than her siblings. Abigail claimed that the reason for doing so was on the basis that she and her husband had made “more than adequate provision” for Constance during Abigail’s lifetime.
In the first instance, the Supreme Court heard claims of further provision by Constance and her son, David, on Abigail’s estate. Both Constance and David had suffered sexual abuse at the hands of Constance’s father, John. McMillan J made orders in favour of both Constance and David. The Court ordered one of the deceased’s properties (to the value of $775,000.00) be transferred to Constance and that she receive a pecuniary legacy of $100,000.00. The Court ordered that David receive $175,000.00. This appeal was against only the orders made in favour of Constance; the executor did not challenge the order made in favour of David.
Relevantly, by way of background, Constance’s abuse had never been made public (not even to her husband) until these proceedings were commenced. As an adult, David had commenced civil proceedings against John as a result of the abuse he suffered as a young child. John passed away whilst those proceedings were on foot and accordingly they were discontinued as no assets were left in John’s estate. The deceased herself had also suffered at the hands of her husband, having been subject to domestic violence by him during her lifetime. Notwithstanding this, whilst she did leave and take refuge with Constance and her husband, she returned to John stating to Constance that she did so for the sake of her children so that the family wealth would one day to go them.
The executor appealed the order in favour of Constance on various grounds arguing, in particular, that the trial Judge erred in finding that Constance had not been adequately provided for by her mother, that the promise made by Abigail to Constance that the estate would be equally shared was the price for Constance remaining silent about her father’s abuse and that the additional pecuniary legacy was a contribution to the future costs attempting to remedy the damage caused by Abigail extracting Constance’s silence about the abuse and failing to protect Constance.
The trial judge, when considering the relationship between Abigail and Constance, said that “it was of relevance that Abigail had knowledge of the sexual abuse alleged by Constance and David, was silent about it and supported her husband by not reporting the abuse or making sure that her husband sought help, notwithstanding Constance’s pleas that she do so”. The judge further said that “Abigail did not do enough to remedy the abuse of Constance and had failed to stop the abuse of her grandson.” [at paragraph 46]
The jurisdictional test was carefully considered as a result of Constance’s own assets equalling approximately $5 million dollars. Additionally, the Court had limited financial evidence as to Constance’s own financial circumstances. Specifically, Constance and her husband had multiple outstanding tax returns.
Notwithstanding this, both Courts were prepared to make the relevant assessment. In doing so the Court of Appeal said “The judge correctly identified that the direct and indirect impact of dealing with the abuse to which she was subjected had affected Constance’s ability to attend to the family finances. It is unsurprising that in those circumstances the evidence was limited. That being the case, the judge did not engage in any detailed analysis of the income earning capacity of some of those family assets, nor would one expect her to do so. Nevertheless, she referred to those assets.” [at paragraph 64].
The Court was satisfied that the abuse of both Constance and her son suffered lead to Constance having a “significantly greater financial need that may otherwise have been the case”. In response to the appellant’s questioning of Constance’s need, the Court said:
“A wise and just testator in the position of Abigail would have recognised this need and have made provision for it in her Will taking into account the size of the estate that she would bequeath and the other calls on it. Viewed in this way, one can see that Constance is not being compensated for some wrongdoing of Abigail or her husband but rather that the estate is responding by providing the necessary financial support that would be expected regardless of any involvement of Abigail. That there may have been some connection between the conduct of Abigail and 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.” [emphasis added – at paragraph 67.]
The Court further said:
“Instead of giving such support, in her last Will Abigail ignored her moral obligations and reduced the bequest that her daughter would have received under her earlier 1990 Will. That it was her intention to ignore her obligations was made clear by the reduced legacy and by cl 7 of the Will set out at  above which, as the judge observed, only referred to Constance – not to either Edward or Phillip. In essence, as the judge observed, Abigail chose to punish Constance for supporting David in going to the police to report John.”
The Court also reiterated the statements by the trial judge referring to Abigail’s conduct impacting significantly on Constance and David’s need for provision “as it has caused them emotional, psychological and financial damage and deprived them of opportunities in life“. [paragraph 58].
Importantly, the Court had to consider the promises made to Constance regarding the passing of the family wealth to the family equally upon the parents’ deaths. Following the judge’s comments in the first instance, the appellant claimed that those promises were not a price for Constance’s silence regarding the abuse. Whilst the Court suggested that perhaps the words used by the trial judge were not ideal in this instance, they did not err in their describing the promises in this way and when taking into account all the circumstances, they were “at least part of the subtext”. [para 79].
The Court made an important connection within Abigail’s timing of the change to her will resulting in unequal division of the estate and that of Constance’s silence regarding the abuse of her and her son, when supporting her son reporting the abuse to the police. The Court found that upon Constance breaking this silence, “the promise to leave her a third of the estate was broken. Part of the moral obligation that Abigail had was to keep that promise” [para79].
You can read the case here.
If you are experiencing sexual assault or domestic and family violence, or know someone who is, please call the National Sexual Assault, Domestic Family Violence Counselling Service on 1800RESPECT (1800 737 732) for confidential advice. If you think someone is in danger, you should ring the police on triple zero (000).