I regularly research for my PhD and, lets be honest, for nerdy interest, for cases involving disentitling conduct. I recently spoke about this case on The Heir Waves podcast (Episode 1, to be exact) about the decisions of Hartley. I wanted to also post about it here for some further detail as I think the conversation needs to keep happening around this challenging topic.
The case of Hartley v Hartley [2021] QDC 323 involved an application for family provision by an adult son who had allegedly conducted himself in a manner that was disentitling, according to his family.
The applicant was a 49 year old man who was excluded from his late mother’s will. The deceased was survived by her 4 sons, one of which was the executor. The deceased left three house properties to the applicant’s brothers, a car to one of them, and the residual estate was to be divided between the applicant’s brothers. The deceased had also left a statutory declaration detailing reasons she excluded the applicant from any provision in her Will.
The applicant had no assets, was on a disability support pension (due to a sports injury from his 20s), no real future employment prospects and lived in community housing. The applicant argued that his circumstances were a result of his traumatic upbringing, citing exposure to drugs and alcohol addiction from an early age. The applicant had himself suffered drug and alcohol addiction, served jail time and had stolen from his mother during her lifetime.
The executor defended the estate by claiming the applicant was disentitling due to his conduct. The conduct alleged was that of stealing from the deceased, hostility, exposing her to violence by drug associates, damaging property, domestic violence and psychological stress and anxiety (para 4).
The estate mostly comprised the houses and cash at bank (which was largely taken up by legal fees and reducing a mortgage), totalling approximately $1.2 million dollars. The applicant’s brothers all lived in very modest circumstances.
The Court was not satisfied that the applicant’s conduct was disentitling, “...but more of a demonstration of his lame duck status consequent upon his tumultuous childhood, physical, sexual and emotional abuse, exposure to drugs, and drug addicted reckless lifestyle.” (para 5).
The Court was “generally impressed” with the applicant’s evidence and noted that he was forthright and candid about his relationship with his mother. The Court noted that he had memory lapses (as a consequence of head trauma as a baby) but otherwise provided reliable testimony.
The Court noted the applicant’s difficult childhood with all four boys being born within 7 years and to different father, with two of the boys being sent to a children’s home for a short time, whilst the applicant sent for approximately 2 years. During his stay at the boys’ home, the applicant was sexually assaulted by a school nurse and later by a neighbour.
The applicant was exposed to alcohol and drugs in early life with the deceased selling cannabis to various customers from the family home and even involving her sons in the transactions. The applicant himself became affected by drugs and alcohol. The deceased supported her son through multiple court appearances and recovery and relapses during his battles. During these challenges, the deceased was subjected to recklessness, drugged verbal outbursts (including verbal abuse), fighting and property damage (such as smashing holes in the walls of one of the deceased’s properties).
The deceased had told people that the applicant had stolen property from her (such as camera, jewellery and bingo winnings). The camera allegation was struck out by the deceased in the statutory declaration. These same claims (with the exception of the bingo winnings) were set out in her statutory declaration. The applicant accepted some of these accusations, however he denied the stealing of the camera or physically assaulting the deceased. The deceased noted in her statutory declaration that she had taken out a restraining order against the applicant, however no evidence of this.
The Court confirmed that the statutory declaration and comments made to others during her life could only go to her reasons for excluding the applicant from her will, but were not evidence of fact (para 60).
As to the alleged disentitling conduct generally, the Court said:
Clearly, the applicant’s intoxicated conduct caused his mother significant stress and concern. He would have been difficult to live with, and despite this, the deceased allowed the applicant to return to live in the Pease Street house and continued to support him. The applicant accepts that he wilfully damaged the walls of the Pease Street house. Ms Ford recalled that the applicant ‘does have a temper and I have witnessed him hit or punch a wall’ at the Pease Street house.
(para 68)
In relation to the stealing allegations, the Court said:
As to matter of stealing, whilst the deceased may have complained to others that applicant stole $1,400 or $1,600, her camera, her jewellery and $4,500 of her winnings from bingo in 2009, the evidence falls well short of disentitling conduct. The applicant also denied stealing bingo winnings or camera, and he denied stealing his grandmother’s antique sewing machine or jewellery. These were not of significant concern to the deceased since she made no mention in her statutory declaration that the appellant stole her jewellery and the hearsay evidence of Lyn Moore is inadmissible as to the truth of the statement. I accept that Damian showed the applicant the stash of $10,000 in bingo winnings at Pease Street, and the applicant admitted to probably taking some of the money, and little bits of his mother’s jewellery because he was “pretty bad back then”. It is also the case that the deceased kept large amounts of cash in the Pease Street house during her life, including while the drug and alcohol addicted defendant and girlfriend were living there. This was not a matter that warranted the deceased’s wrath in her statutory declaration.
Similarly, there is no evidence about the applicant stealing the camera, on the contrary, Peter testified that the camera was returned to the deceased. I also note that the deceased apparently withdrew her declared comment about the camera by striking through those words.
(para 69-70)
In relation to the applicant’s addition, drug use and his upbringing, the Court said:
Then there is the applicant’s persistent and overbearing drug and alcohol addiction and misuse. In her statutory declaration, the deceased expressed concern about the propensity of the applicant and his then girlfriend spending her money on drugs. The applicant seeks to equate this behaviour to that of a “spendthrift” or gambler.[13] I disagree. Unlike a spend spendthrift and gambler, the applicant’s conduct was clothed in illegality. On my assessment I think that the defendant’s drug and alcohol addicted state and behaviour, when taken in its proper context, is not sufficiently serious and falls short of being characterised as disentitling conduct.[14] His character and lifestyle were shaped at an early age as he navigated a tumultuous childhood, physical, sexual, and emotional abuse, and exposure to drugs at home by his own mother. Ineffective parenting, and later adult influences entrenched his drug and alcohol addiction, which manifest in the behaviour now subject of complaint.
I conclude that the applicant is not disentitled to adequate provision from the deceased’s estate. I think that a wise and just testatrix, having regard to the applicant’s hopeless state and its genesis, should have made some provision for the applicant in her will.
(para 71-72)
The Court ordered provision in the form of a legacy of $150,000 to the applicant. In doing so, the Court said:
A sum should be awarded which recognises the personal and medical difficulties facing the applicant which ensures that he will be in a position to enjoy access to quality health care, sustained rehabilitation, proper maintenance, and secure appropriate accommodation. Taking into all that I have discussed above, and cognisant of the other beneficiaries, I conclude that adequate provision for the proper maintenance and support of the applicant requires a legacy $150,000.
(para 81)
In relation to the burden of such a legacy in light of the specific gift of properties and available residue, the Court said:
In the result I do not see a basis for making a greater provision in terms of one quarter of the estates as to treat the four sons equally. Whilst I ought only interfere with the will to the extent necessary to give effect to the legislation, interference of a significant kind might be necessary to at least one of the properties to ensure that proper provision is made for the applicant. The specific legacy to the applicant will need to be paid from the disposition of one of the properties whether by sale in whole or part. Given the evidentiary uncertainty as to the current market values of the properties, I am unable to deal further with this aspect other than to observe that it appears that the Lake Eacham property is worth about $200,000 more than the others. This may be an appropriate resource to fund the specific legacy without unduly interfering with the dispositions in the will beyond the extent necessary to make proper provision for the applicant and recognising the financial position of the other beneficiaries and their respective entitlements under the will.
(para 82)
You can read the case here.
