“Estrangement explained”: FPA provision ordered following years of family disharmony

The case of McLeod v Napthali [2021] NSWSC 1621 really struck me as I read this brief judgement today. Great thanks and shout out to buddy Clifford Hughes for sharing this one with me (he understands my great love of all things estrangement and disentitling conduct in FPAs!).

This is great humanity demonstrated by His Honour Justice Lindsay in this case. I have a great respect for this and as you read the judgement, you may understand why.

The case involved a deceased gentleman who was survived by his 5 children (4 sons and a daughter) and a number of grandchildren; his wife (the children’s mother) had predeceased him. The two eldest sons applied for further provision from the estate. The deceased left a Will dated 2006, leaving his estate divided in five parts, one part to each of 4 children and the remaining fifth share to be shared between the second plaintiff son and his former wife and their children. The estate was worth $830,000 (approximately $680,000 after costs).

Sadly, the family relationship had been challenged with great estrangement between the eldest two children and their father. For one, the relationship between one of the sons and his father followed the breakdown of marriage between the son and his wife. The deceased ’embraced’ the former wife and the children to the exclusion of the son. The Court noted that “The second plaintiff’s former wife and children deeply believe that they were abandoned by him after he had had an extramarital affair, which he denies. Their resentment runs deep. They give no credence to the story he has to tell. Therein lies a tragedy, firmly founded upon disbelief and a lack of forgiveness.” (para 12). In para 15, the Court noted the deceased’s reasons for the provision left in the Will as mentioned in conversation to another before his death “In that conversation the deceased rationalised his separate treatment of the second plaintiff on the ground of a failure on the part of the second plaintiff to care for his former wife and children“.

There were allegations by both plaintiffs of physical violence by the deceased toward them in their formative years which was said to have played a large part of the strained relationships. The Court accepted much of this evidence from the plaintiffs of the treatment of them by the deceased and the deceased’s ‘traditional views’ of marriage. In recognising the complexities of human relationships and dynamics over the years, the Court noted (at paras 34 to 40):

I accept without reservation that (as one of his grandchildren deposed in evidence) the deceased was a “respected man in the community”.

His “old style” view of marriage (as described by the second plaintiff’s former wife) was that “marriage was for better or worse”. In the case of the second plaintiff at least, this view of the world appears to have contributed to estrangement of the second plaintiff from his father.

An underlying tragedy in this family is that, despite estrangement, there was a deep yearning, certainly on the part of the plaintiffs, to be part of a happy family.

The plaintiffs came under criticism in these proceedings because they did not attend the funeral of their mother, a person for whom they expressed unqualified affection. The fact is that, much to their distress, they were not informed of her death until well after the event. This I take to be a measure of the deceased’s mindset, not theirs.

At his funeral, the priest who conducted the service told the second plaintiff and his daughter that the deceased’s “final confession focused on the regret he had about his treatment” of his children.

The fact that the deceased made some provision for each of his five children (and for the second plaintiff’s former wife) demonstrates an awareness on his part that he owed all of them a moral duty to make at least some provision.

Nevertheless, he seems to have died without full insight in to his treatment of the plaintiffs in their formative years, his responsibility (in part) for their struggles in after years and their necessitous circumstances.

The first plaintiff (who received a one fifth share of the estate under the Will) sought a further $25,000 which was ordered by the Court.

The second plaintiff sought a further $110,000 in addition to his share of the one fifth share (to be distributed equally between the second plaintiff, his former wife and children as per the Will). The Court ordered further provision in the amount of $60,000.

Notably and in a great demonstration of humanity, which simply must be acknowledged and highly regarded, in his final paragraph, His Honour Justice Lindsay, stated:

HIS HONOUR: What I will say to you I say also to your siblings, and that is I’m not intending any disrespect to your dad. He obviously did the best he could with what he had, and the time has come for all of you in your advancing years, if you can find it within yourselves, to extend to one another a little bit of charity. I sense in this family that there is scope for that. If I thought it was a waste of time, I wouldn’t waste your time. But, anyway, [to counsel] thank you for your assistance

You can read the full (brief) case here.