In the first post of this year, it seems fitting to write on the topic of disentitling conduct and estrangement, given my research interests in this space.
Sadly, late last year saw the NSW Supreme Court determine a family provision application by a son against his father’s estate in what was clearly a very difficult family relationship over many years.
The case of Pulitano v Pulitano  NSWSC 1688 involved an adult son (the plaintiff) of a gent who passed being survived by 4 of his 5 children and his second wife of 27 years. The plaintiff was the deceased eldest surviving son. The deceased’s daughter from his first marriage (the plaintiff’s sister) also made her claim, having it settled prior to the plaintiff’s trial.
The deceased left a Will dated 21 July 2016 nominating his second wife as the sole executor and beneficiary. The estate was worth approximately $3.2 million and made up of, primarily, real property. The net distributable estate was calculated as approximately $2.6 million. The plaintiff had contributed his wages and labour towards the deceased’s properties during their relationship.
The relationship between the deceased and the plaintiff was described as a ‘long fractured relationship” by the Court (at para 159).
In the plaintiff’s childhood years, it was accepted that he suffered abuse from the deceased including, regular physical abuse such as whippings, beatings, being hit by objects, being hosed down and being chained up and “prolific” verbal abuse (noted at page 137 of the judgement).
After leaving home at 17 years of age, the plaintiff entered a life of crime and drugs which resulted in several incarcerations. Additionally, during their tumutulous relationship, the plaintiff and deceased had a number of arguments and altercations, some of which resulted in police reports and AVOs.
Notwithstanding their difficult relationship, the plaintiff and deceased remained in contact, save for a few periods of estrangement (generally around the times of their arguments and altercations).
The deceased and the plaintiff did not have much contact between 2000 and 2007, which appeared to be largely reflective of the plaintiff’s nervous breakdown and commitment to therapy during that time.
In 2012, the parties reconnected and discussions were held regarding the possibility of building a property for the plaintiff at the back of one of the deceased’s properties where the plaintiff and his family could reside, rent free. It was unclear who was responsible for this reconciliation. Discussions were held about the plans which also involved the parties attending a lawyer to discuss options, including having the plaintiff’s name on the title or considering a gift of the property to the plaintiff in the deceased’s will. Shortly after the parties were considering construction plans, sadly, there was an argument via telephone and the plaintiff and deceased ceased contact until mid-2015.
In 2015, the plaintiff initiated a reconciliation and, again, the prospect of construction of the additional property for the plaintiff’s family was raised. Subsequently, the plaintiff, living elsewhere at the time, relocated himself and his family as a result of the agreement. Following the move, the plaintiff and deceased had a disagreement over the arrangements and the responsibility of build costs which lead to a further significant breakdown of their relationship.
The Plaintiff proceedings brought against the deceased claiming a breach of ‘promise’ and then reported the abuse and further brought a claim for damages in respect of that abuse by the deceased. In January 2017, the proceedings for the breach of promise were dismissed by the Court, having found that there was no enforceable agreement between the deceased and the plaintiff. The proceedings for damages was later dismissed by consent following the deceased’s death in February 2017.
In acknowledging the guidelines relevant to application for further provision by adult children, the Court noted the applicable principles as held by Hallen J in Rogers v Rogers  NSWSC 1982, at  of that judgement, in paragraph 125:
“(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of the parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in terms of an adult child. It can be said that, ‘ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such to justify it, there might be such an obligation”: Taylor v Farrugia  NSWSC 801 at ; McGrath v Eves  NSWSC 1006; Kohari v Snow  NSWSC 452 ; Salmon v Osmond  NSWCA 42 at .
(c) Generally, also, “the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent on a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents 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 at.
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Klenig v Neal (No 2) at 545; Bondelmonte v Blanckensee  WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at .
(e) 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  WASC 169 at -; Crossman v Riedel  ACTSC 127 at . Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks  WASCA 297 at . 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  WASC 287; Butcher v Craig  WASC 164 at .
(f) 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 (1979) 143 CLR 134 at 149;  HCA 2.”
In response to the abuse and the estrangement, the Court noted the importance of the apparent causes of the estrangement and where there is hostility, sometimes it is necessary to apportion some blame or responsibility. The Court noted that the recognition of causes of estrangement are relevant but the existence of estrangement itself is not enough (para 131-132).
In the context of abuse in family provision claims, the Court noted some important distinctions (at para 133-134):
Fourth, while there is evidence that the plaintiff suffered physical abuse as a child at the hands of the deceased, the purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased’s legal or moral duty to be a good and responsible parent. Nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased: Williamson v Williamson  NSWSC 228 at -.
That said, the Court may take into account the past conduct of the deceased where it provides an explanation for the current position of the plaintiff, including his mental state (if established), giving rise to additional needs. The deceased’s past conduct and abuse is not irrelevant where it had the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff’s need for provision: Williamson v Williamson  NSWSC 228 at ; Litchfield v Smith & Tingate  VSC 466 at .
It was clear from the judgement that the Court gave much consideration of the contentions regarding estrangement and conduct submitted by the defendant (the deceased’s second wife) in response to the plaintiff’s claim.
The Court said, at paragraphs 246 to 254:
There is no dispute in this case that the plaintiff and deceased were estranged at the time of the deceased’s death. But I do not accept the defendant’s submission that the plaintiff was the only party responsible for the estrangement between him and the deceased. As I have found, the final abandonment of the relationship in 2015 was, in my view, ultimately a mutual one, with both the plaintiff and the deceased conducting themselves in ways that could be considered blameworthy and resulting in there being little or no likelihood of reconciliation or ongoing father/son relationship.
I accept that the conduct of the plaintiff in taking Court action against the deceased, reporting him to the police and using aggressive and hostile language could be considered egregious and render him undeserving. But the plaintiff’s conduct needs to be viewed in the context where he had suffered abuse from the deceased as a child, believed he had been wronged (again) by the deceased’s actions, particularly by encouraging him to move his family to Sydney, offering him housing assistance and then, so far as the plaintiff was concerned, reneging on a “promise”, and the deceased had taken out an ADVO against him.
I do not consider this to be a case which should be characterised as an adult child simply treating their parent callously, with hostility and withholding love and support without any justification. The circumstances of the plaintiff’s final estrangement from the deceased, his conduct towards him in 2015 and 2016 and the lack of prior close ongoing contact are explicable by the long fractured relationship between the plaintiff and the deceased over many years, as well as the deceased’s conduct towards the plaintiff particularly when he was young.
I accept there was no attempt at reconciliation by the plaintiff towards the deceased in the year before he died. But that was in the context where the deceased had taken out an ADVO against the plaintiff. There is also evidence that the plaintiff wanted to see the plaintiff at the hospital before he died but did not because he believed the ADVO prohibited him from doing so and because the defendant failed to response to the message from [the plaintiff’s wife]. The plaintiff also attended the deceased’s funeral.
In those circumstances, I am not persuaded by the defendant’s submissions that the estrangement between the plaintiff and the deceased and the plaintiff’s conduct towards him in late 2015 and 2016 are determinative factors that have the effect of barring the plaintiff’s claim for provision. Rather, they are factors to be considered with all others and may, if provision is to be ordered, have the effect of reducing the plaintiff’s claim on the deceased’s estate: Keep v Bourke  NSWCA 64 at .
As noted by Bryson J, in Gorton v parks (1989) 17 NSWLR 1 at 12, “It is obvious human experience that even small assistance at early stages of life can transform a person’s economic opportunities later”.
The facts of this case demonstrate that the plaintiff had a challenging childhood. He was subject to abuse by the deceased, left school when he was relatively young at a time when he could not read, did not learn a trade and was required to hand over his wages and work on the deceased’s properties. The conduct of the deceased towards the plaintiff when he was young would, in my view, be assessed as contrary to the moral duties and expectations of a parent, at least by today’s community standards. It is also conduct which is to be expected has had some lasting impact on the plaintiff’s life and circumstances.
While debate may be had as to all of the causes of the plaintiff’s needs, I do not accept the defendant’s contention that his current circumstances are related to his childhood experiences and are caused only by his past drug abuse and life choices. The plaintiff’s evidence, as well of the opinions contained in [the plaintiff’s psychologist’s] reports, supports the conclusion that the deceased’s conduct, particularly the abuse, had the effect of depriving the plaintiff of some opportunities in life and that there is some causal connection between the deceased’s treatment of the plaintiff and the plaintiff’s current need for provision.
That is not to say that the plaintiff’s position today is to be solely attributed to the deceased. It is not. The plaintiff has made some choices in life which, by his own admission, were the wrong ones that also contributed to the position he finds himself in today.
Of the deceased’s consideration of the plaintiff and his moral obligation to him, the Court further noted, at paragraph 257:
The plaintiff’s needs and a moral obligation to his son were recognised by the deceased when he offered the plaintiff an opportunity to build and live at the back of the Dean Street property in 2012 and then again in 2015. The deceased also considered making provision in his Will recognising the plaintiff’s interest in the property. This was despite their difficult history and the deceased’s statements in the 1993 letter and instructions at the time of his 2005 Will which referred to the plaintiff’s drug use, time in gaol and lack of affection. The deceased’s last Will was created at a time when the plaintiff and deceased were finally estranged, raising questions to my mind as to whether he gave due consideration to the claims of the plaintiff as a wise and just testator should.
Of views and community standards regarding the circumstances of the case, the Court further said (at para 261):
I accept that there are likely to be a range of views on what members of the community might consider the deceased should have provided for the plaintiff in this case or what he was morally obliged to do. This is particularly given the periods of estrangement and the plaintiff’s conduct. But, in my view, those factors do not justify the conclusion that adequate provision has been made by the deceased’s Will for the plaintiff’s proper maintenance and advancement in life.
In circumstances where the deceased had previously recognised some moral duty to help the plaintiff by the offer of building a house on his land, the plaintiff has significant financial need (which is supported by the facts), the size of the estate is not small, there are no competing claims, the plaintiff made contributions to the deceased’s estate while he was young, and the past conduct of the deceased provides some explanation (but not all) for the current position of the plaintiff, it seems to me to be consistent with community standards and the deceased’s moral duty for the deceased to have made some provision for the plaintiff in his Will.
The plaintiff submitted that provision for him should be one of the properties (valued at approx $1.375m) and $200,000 for contingencies. The Court did not accept that. The Court, instead, awarded a lump sum of $470,000 and the plaintiff’s costs on the ordinary basis. The Court noted that the value of the provision is “influenced by the plaintiff’s contribution to the estrangement, his late conduct and the nature of the relationship between the plaintiff and the deceased over much of the plaintiff’s adult life” (para 267). The amount was also said to be calculated having regard to the significant contributions the plaintiff had made to the deceased’s properties during his life and the 27 year marriage to his second wife spouse.
You can read the case here.