Elder Abuse = Disentitling Conduct: FPA by adult daughter dismissed with costs

It is no surprise to any of my colleagues in the succession world that this topic is of great interest to me. So, you can imagine my interest when I found this case.

A few days ago, the New South Wales Supreme Court determined a matter that involved a family provision claim by an adult daughter (the plaintiff) on her decaesed mother’s estate where there had been a long history of abuse and a troubled relationship between the daughter and both her parents. In addition to the family provision claim was a claim by the executor of the daughter’s deceased father (who passed 2 years after her mother) to undo the transfer of the deceased’s property by the daughter (under a Power of Attorney granted to her by her father) to her own daughter (the deceased’s granddaughter) on the basis that the transaction was an unconscionable bargain and a breach of the fiduciary duty owed by the daughter to her father under the power of attorney. The latter proceedings were initiated by the father, through his son as his tutor, and subsequently continued by the estate after the father’s death in 2019.

In the case of Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288, the deceased father (Dr Grant) was a radiologist and was survived by his 5 children. Dr and Mrs Grant’s eldest son, Professor Grant, was executor of both their Wills.

Mrs Grant had left a Will in 2012 leaving no provision for her daughter. Professor Grant, on behalf of his father’s estate, contended that the plaintiff had depleted Dr Grant’s estate by $4 million between 2011 and 2017. In September 2017, the plaintiff transferred Dr Grant’s Killcare property from Dr Grant to her own daughter (the granddaughter – who was also a defendant with her mother in the estate proceedings to undo the transfer). The plaintiff contended that the property transfer was a gift that her father wanted to make to her daughter so that her daughter could always provide a home for her. The property was subsequently leased to the plaintiff for life, by the granddaughter.

The estate contended that the plaintiff should not receive any further provision for two reasons:

  1. that the plaintiff treated Mrs Grant so badly during her lifetime and therefore is not entitled to any order in her favour;
  2. that the plaintiff received substantial gifts from Mrs Grant during her lifetime.

The plaintiff claimed, in reply, that her siblings received as much as she did and that this was not justification for leaving her out.

The judgement in this case sets out a lengthy and comprehensive background. In fairness, you really ought to read it in full as the background is truly necessary to appreciate the depth of the family conflict and challenging circumstances experienced by Dr and Mrs Grant during their lifetimes. I had begun a recount of these in brief, but honestly found it incredibly challenging to do it justice, so I implore you to consider the judgement yourself.

In a very brief summary of the background, the plaintiff was understood to have misused the power of attorney granted to her over her father to her own benefit and that of her daughters benefit over many years. The plaintiff was said to have harboured a drug and alcohol problem over many years and would repetedly abuse her parents in order to gain access to their funds. Notwithstanding this abuse, Dr & Mrs Grant attempted to support their daughter, particularly during rough patches, including going through drug addiction and struggling to care for her newborn daughter. They supported her buy buying her a property to live in and helping with living expenses and private school excpenses for their granddaughter and overseas trips. They did not wish for their granddaughter to miss out what their daughter could not provide her. They had also attempted to get her help through rehabilitation which as refused.

The estate contended that the plaintiff’s conduct disentitled her to any provision from the estate. The alleged conduct over the last 2 days of her mother’s life included:

  • constant and long-term verbal abuse of both parents over decades;
  • physical assault of her father, involing her slashing his face and neck with the metal end of a dog leash after she was displeased with her daughter’s haircut that her parents had arranged for her;
  • a pattern of attending the family home, taking her father to a private room, locking the door, and having him sign cheques in favour of her and her daughter;
  • taking her father to ATMs to seek withdrawals of cash for her own use;
  • taking and using her father’s credit card for her own benefit;
  • threatening physical violence (including with a shot gun) toward Mrs Grant;
  • concealing the whereabouts of Dr Grant from Mrs Grant and the broader family to the point where Dr Grant was reported as a missing person;
  • disallowing contact by family to Dr Grant by phone or other means;
  • attempting to thwart Mrs Grant’s plans to travel to the UK to gain respite away from the abuse;
  • making Mrs Grant fearful for her life rendering two AVOs against the plaintiff;
  • instructing care facility staff to disallow any visitors to Dr Grant other than the plaintiff;
  • forcing Dr & Mrs Grant to change their Wills and/or Powers of Attorney;
  • holding Mrs Grant captive at one of Dr & Mrs Grant’s property and subjecting her to verbal abuse and threats of physical violence;
  • and more.

The relationship challenges ultimately led to Mrs Grant leaving and seeking refuge with her other children, and leaving Dr Grant behind. Very sadly, this further lead to a ‘separation’ and an agreement reached to sell their jointly own properties, after Mrs Grant took steps to sever the joint tenancies enjoyed with her husband. Dr & Mrs Grant were separated by these sad circumstances from 2011 until Mrs Grant’s death in 2017.

In 2017, Professor Grant was able to locate his father and visited him at his care facility. During that visit, Dr Grant confessed that he was unhapy about the treatment he had received at the hands of the plaintiff and wanted Professor Grant to take over his afairs. By this stage, there was some concern regarding cognitive decline of Dr Grant. Professor Grant confirmed these wishes over the course of the following months as Dr Grant maintained that this was his wish. The manager of the care facility also had expressed concerns about Dr Grant being under the plaintiff’s care. Dr Grant had untreated skin cancers and was significantly underweight.

Professor Grant then arranged for a a solicitor to attend Dr Grant and Dr Grant made a new Power of Attorney revoking the plaintiff’s authority. The plaintiff was made aware of the revocation of her authority by the care facility and when she said she was on her way, the police were called as a precautionary measure. The same day, Professor Grant arranged to move Dr Grant to a new facility.

Shortly after Dr Grant appointed Professor Grant as his attorney, Professor Grant attended the bank to prevent the plaintiff from accessing any further monies and update the bank of the new Power of Attorney. However, the plaintiff had already withdrawn four large sums from when she was made aware of the revocation of her authority, equalling approximately $390,000. Shortly thereafter she also had the Killcare property transferred to her daughter.

Dr Grant’s finances were in such a state that he could not afford the costs of care at the new facility. Dr Grant was left with approximately $20,000 in his bank acounts and the Killcare property which was subsequently transferred to the plaintiff’s daughter. Professor Grant and another of his siblings assisted with their own money to pay for Dr Grant’s care and costs of proceedings on Dr Grant’s behalf. Shortly after Dr Grant commenced lived at the new facility, the facility banned the plaintiff, her daughter and son-in-law and another of Dr Grant’s children from entrance at the facility.

Dr Grant was determined to have later lost capacity and, due to the dynamics of the family being hostile and uncooperative, the NSW Trustee and Guardian was appointed manager of his estate in May 2018. Following his move to the new facility, Dr Grant’s health and cognitive alertness improved in the last few years of his life. He died in November 2019 at age 98.

Mrs Grant left a Will dated May 2012 which, after some bequests, divided her estate between three of her children. Mrs Grant’s personal estate was said to be approximately $737,920 with a new distributable estate of $361,104 after funeral expenses, legal fees and costs associated with care for Dr Grant (as was one of her wishes expressed to Professor Grant). Mrs Grant’s notional estate was estimated $350,000 and $420,000 amount that was given to Professor Grant by Mrs Grant for the future funeral and care expenses of Dr Grant. Mrs Grant also left two comprehensive notes explainig the reasons for her excluding the plaintiff that spoke of the abuse and the violence.

In determining the case for family provision, the Court noted the principles of Underwood v Gaudron (2015) 324 ALR 641 with regard to the quality of relationship between the plaintiff and Mrs Grant and their estrangement. At [231](d), (g) and (h) of that judgement, it was said:

(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particulary in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain the amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the beahivour of one part or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

Quoted at paragraph 282.

At paragraph 294, the Court said:

On behalf of the estate [counsel for the estate] submits Mrs Grant was justified in not making provision for the plaintiff on account of her disqualifying conduct toward Mrs Grant, the advancement of [the plaintiff] of the Central Coast property in the 1980s and 1990s, the$400,000 “IOU” from Dr Grant’s estate, the money [the plaintiff] took from both Dr Grant and Mrs Grant during their lifetimes, and her active concealment of Dr Grant from Mrs Grant between the years February 2011 until her death on 6 May 2017.

These contentions are well justified. It is impossible to quantify how much money [the plaintiff] took from her mother over the decades. But it can safely be said that [the plaintiff] knew all of her mother’s weak points and was very efficient in extracting money from her. The Court infers that she was able to glean very substantial sums from her mother over time. And this inference is further supported when a calculation can be made (in the estate recovering proceedings – see below) of the benefits [the plaintiff] and [the granddaughter] received after February 2011.

In conclusion, the Court dismissed the family provision claim by the plaintiff and in doing so said:

[The plaintiff] fails in her claim for provision out of her mother’s estate on two principal grounds: her ill treatment of her parents, particularly her mother, over a long period disentitles her to any further relief by way of family provisiion under Succession Act, Chapter 3; and, she has already received very substantial benefits from her mother throughout her lifetime.

Mrs Grant was afraid of her daughter [the plaintiff] with good reason. [The plaintiff] behaved with callous brutality towards both of her parents over decades. She had seen [the plaintiff’s] physical violence towards Dr Grant. She had personally been the subject of [the plaintiff’s] constant hectoring and harrassment for money. She had seen [the plaintiff] sequester Dr Grant, dominate Dr Grant, and use his willingness to give her money as her treasury. Mrs Grant was so fearful of [the plaintiff] that she had taken up [Professor grant’s and his wife’s] offer of seeking respite at Cambridge in the first few months of 2011, during one of the worst periods of [the plaintiff’s] harrassment.

[The plaintiff’s] conduct over decades was calculated to make Mrs Grant fearful and comly with her demands and it had that effect. [The plaintiff] treated her mother as a creature to be frightened and then coerced into doing what she wanted. Any vestiges of mother-daughter affection had long disappeared between [the plaintiff] and Mrs Grant. Stung by the constant pain of [the plaintiff’s] drug taking, thefts, aggression and unpredictability and the shame she brought upon the family, Mrs Grant’s decision to keep her daughter at arms’ length was entirely understandable.

For [the plaintiff] to be omitted from Mrs Grant’s will does not offend community standards of what would be expected of a testator in her position. Children with difficlut relationships with or estrangement from parents not uncommonly obtain family provision relief. But this case is in a category of its own and involves decades of actual aggression by [the plaintiff] towards her mother, who was afraid of her daughter.

And [the plaintiff’s] case is missing another potentially mitigating factor. The Court has immense difficulty in finding in [the plaintiff’s] conduct any reliable evidence pointing to the altruistic or selfless conferring of benefits upon her mother.

But [the plaintiff] seeks to excuse this gap in her case. She says that [Professor Grant and her other sister] hid Mrs Grant away from her from 2011 and she could not provide a daughter’s support to her. In one sesnse this is true. Mrs Grant was kept away from [the plaintiff] between 2011 and 2017. But this was at Mrs Grant’s own request and was both a necessary and well justified decision taken for Mrs Grant’s own protection from [the plaintiff].

And looking at [the plaintiff’s] conduct before 2011, the Court does not accept that [the plaintiff] provided any services, support, affection or security to her mother. [The plaintiff] is underserving of Mrs Grant’s testamentary bounty and her Succession Act, Chapter 3 claim for family provision fails. Her Summons will be dismissed with costs.

At paragraphs 296 to 302.

In respect of the claim to undo the property transfer, The estate was successful in obtaining that order. The plaintiff daughter had attempted to argue that Mr Grant had given her a copy of a handwritten note containing his wishes for the house to be transferred to the granddaughter and for the granddaughter to give a life tenancy to the plaintiff.

The Court was provided with evidence from a handwriting expert, which suggested that the signature of Dr Grant’s was a signature from an earlier document of his that was transposed onto the handwritten letter and there was an incredibly slim possibility that Dr Grant signed the letter.

The Court held that the plaintiff had breached her fiduciary judty to her father and ordered that the property be transferred back to from the granddaughter to Dr Grant’s estate along with $100,000 taken by the plaintiff (after Dr Grant moved care facilities) and $34,700 used Dr Grant’s account to pay stamp duty in relation to the property transfer, to the estate, with interest.

It should be noted that the familiy dispute is not over, as the plaintiff daughter seeks to contest the probate proceedings for Dr Grant’s Will made in 2018. It remains to be seen whether any further disputes will arise over Mr Grant’s estate.

You can read the case here.

If you or someone you know is experiecning elder abuse, please seek help: The Elder Abuse Helpline is 1300 651 192 or 07 3867 2525. For some further information, please visit the Elder Abuse Prevention Unit at www.eapu.com.au.

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