Whilst this case is a little older than my usual case updates, it is by no means less interesting and, in my humble opinion, important when it comes to considering decisions in family provision matters involving disentitling conduct and estrangement.
In the case of Dawson v Joyner [2011] QSC 385, the deceased was survived by two sons and left a large estate whereby he excluded his eldest son (Garry) from any provision. The deceased was 79 years and was divorced from his sons’ mother. Garry was estranged from his father from the time of his parents’ divorce and remained estranged for at least 22 years.
The primary asset of the estate was a large grazing property called “Punchbowl” comprising approximately 3000 acres and valued an estimated $1,995,000. The estate also comprised of cash at bank, livestock, shares and a one third interest in a grazing partnership. The net estate was worth approximately $2.8 million.
The deceased’s younger son, Ross, worked on the property with his father was described as a dutiful son up until his father succumbed to dementia and was placed in an aged care facility in Yeppoon. The appropriateness of Ross and any suggestion of abandonment of the deceased by him was not something the parties, or the Court, considered impacted the case and made no further comment on this element of the facts.
The deceased was described by both sons as a ‘hard man’, ‘old school ‘and difficult to live and work with. Ross had a close relationship with his father in that he worked the property for approximately 30 years (from age 15) and lived in the neighbouring (and principal grazing) property with is wife. The deceased would regularly eat meals with Ross and his wife and Ross’ wife would do most of his shopping for him. In his later years, the deceased was said to have become increasingly difficult to manage.
Until the age of 23, Garry also had a similar relationship with his father to that of his younger brother. Garry worked on the property and it was clear that the testator’s plans were for his sons to work the property and in the family grazing business and one day inherit the properties. With this all in mind, in 1984 Garry and his wife purchased a property at Dingo with the use of a bank loan and money from the deceased (via the family trust) and some money from his own inheritance from his mother’s estate. Ross also contributed to the purchase. Garry made no contribution.
Later that year, the deceased and his wife separated. Garry was said to have felt that his father treated his mother inappropriately. As part of the property settlement proceedings between the deceased and his wife, the deceased had a letter from his solicitors sent to Garry to call on a ‘loan’ owed by Garry in regards to the Dingo property purchase. Shortly after receiving the letter, Garry left the property never to return. The Court noted that it was difficult to ascertain whether the deceased’s action was motivated by a genuine need for funds, his perception that Garry had aligned his mother in the family law proceedings or genuinely thought there was loan monies owing.
Garry intervened in the family law proceedings to seek a declaration that no monies were owed regarding the Dingo property and also to seek a payment from the deceased of $150,000 to represent his contributions to the income and improvements of the family grazing business. A resolution was reached by Deed in 1986 which included a term that each “severally releases his or her rights to make an application for provision or further provision under the Testator Family Maintenance provisions of the Succession Act 1981”.
In respect of the clause included in the Deed, the Court noted that Ross, as the respondent, in the case contended that:
whilst the clause is void in so far as it purported to preclude the application from pursuing his entitlements under the Succession Act 1981 it nonetheless informs this Court as to the intention behind the settlement reached – namely that Garry was severing all ties and claims on his father.
Para 30
There was no relationship or contact between the deceased from 1986 through to 2007. Garry swore that the relationship had been “reformed” in 2007 when he began visiting the deceased in a nursing home. The Court noted that Garry had visited his father on a dozen or so times but that his father had long been suffering dementia before Garry’s visits commenced. Medical evidence informed the Court that the deceased’s dementia escalated quite rapidly and was not capable of forming or maintaining any relationships from January 2007.
Of the evidence before the Court regarding the relationships, the Court said:
From the description that both Garry and Ross gave of their father it seems to me that it would be out of character for him to forgive and forget. He had sworn a declaration in August 1992, explaining his decision to make no provision for Garry in his will prepared then, where he said that he considered that in the Family Court proceedings Garry had obtained benefits that “far exceeded” his then entitlement and that the manner in which the proceedings had been conducted against him by his wife and Garry was ‘malicious, vexatious and partly fraudulently”. He had not included Garry in any of his three wills, the last being made on 20 October 2005.
No meaningful reconciliation took place. While he preserved his faculties the testator displayed no wish or intention that he be reconciled with Garry, nor did Garry attempt to be reconciled with the testator.
Para 36-37.
The Court accepted that Garry’s net worth position was approximately $800,000 (taking into account that he had recently separated and it was likely he would enter into a property settlement with his wife of 25 years). The Court noted that Garry’s net position, at the time of the testator’s death, was approximately $1.5 million and that there was no evidence that at the date of the testator’s death, the relationship between Garry and his wife, at that time, was going to come to an end. The Court noted the relevance of these particulars in light of the jurisdictional test as at the date of death “with the notional ‘wise and just testator’ bringing into account all relevant facts and those that are within ‘the range of reasonable foresight‘” (para 43). Ross’ financial situation was comfortable with a net asset position in excess of $9 million.
It was commonly accepted by all that Garry had made no contribution to the estate since he left the farm in 1985. Ross, however, had made substantial contributions, having lived and worked the lands throughout his life.
The Court rejected the applicant’s submission that the jurisdictional test was met on the basis that there was a large estate and no provision was made for the applicant at all. The applicant further submitted that the Court ought to consider the considerable wealth of Ross, the large estate, the estrangement and reconciliation with Garry, the estrangement with Ross and the modest financial circumstances of Garry.
In rejecting this submission also, the Court said
What this submission assumes, and that I reject, is the supposed “reconciliation” between Garry and the testator and the so called estrangement between Ross and the testator. Conversely, what the submission overlooks is the “the totality of the relationship between Garry and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his bounty”. Further it ignores entirely the contribution that Ross has made over his lifetime to the testator’s wellbeing and the estate that he left.
Para 61.
The issue for the testator was whether he ought to make provision for a son who had chosen to lead a life separate from him, to whom he had gifted a substantial asset when aged 24 years, each expecting that would end the obligations of a father to a son, the son having done reasonably well in life having assets as at the date of death, jointly with his wife of 25 years, approximating $1.5M in value and a well paid and apparently secure position with a mine grossing around $2,300 per week. His wife, too, was in good health and in apparently reasonably secure employment. This decision had to be made against a background that the testator had been supported in his business enterprises by his only other son and that what assets he had to leave had been substantially contributed to by that other son over 30 years of effort. As well what domestic life he had came from the comfort provided y that son and his family.
Para 62.
In finding no useful comparison of cases submitted by the applicant, the Court found that Garry was not in any great urgent need, was able to cover for necessities and had enough “bread and butter” (in reference to the well known comment in Blore v Lang (1961) 105 CLR 124 – where it was said that an adult daughter’s need was “not for the bread and butter of life but for a little of the cheese and jam“).
The Court did note that the circumstances of the applicant’s claim was similar to that of the well known decision of Vigolo v Bostin (2005) 221 CLR 191 and said:
I was taken to many cases where the Court has intervened in estates. I mean no disrespect to the detailed submissions of counsel but the comparison of one factual situation to another is rarely of great assistance. No case to which I was referred matched the precise set of circumstances here. The closest was probably the factual situation in Vigolo where the application was dismissed. There the applicant had worked on the family property for many years, fell out with the testator, came to a compromise as to his property claims and entered into a Deed of Settlement whereby he received a significant payment. All this matches Garry’s situation in 1986. As Callinan and Heydon JJ observed: “Why it may be asked should he now get more?” (at para [123]) The answer that the applicant advances here is that his brother has so much more than he. In my view that is no answer at all.
Para 72 [my emphasis added]
In dismissing the applicant’s claim, and in responding to the applicant’s position of needing to be advanced in life, the Court said:
I make no finding here that Garry had any defect of character. He chose to dismiss his father from his life. It is not possible now to determine the rights or wrongs of that decision nor is it necessary to do so. But I have no doubt here that the testator had every right to bring into account the behaviour of Garry towards him, and of his behaviour towards Garry in providing him with a unencumbered property at a very young age that could not but have helped him significantly in life. That he was advanced, and significantly so, by the gift cannot be doubted.
Para 75. – [my emphasis added]
You can read the full case here.
This case, at least for me, highlights the importance of a number of factors in these decisions. Things like, the ability to compromise a property claim and the impact of such on future FPA claims where it comes to advancement and the ability for testator to take that behaviour into account. I would go so far as to say this is particularly helpful decision to advocate for the use of collaborative practice modelling in estate planning matters where the family dynamic is challenging. If you are minded to agree, you may wish to check out Zinta Harris’ collaborative practice training for wills and estates practitioners. Yes, it is a very different way of practising law, but it is highly, highly beneficial and has many transferable skills sets. I, myself, am a qualified and very proud collaborative practitioner. And, before you ask, no; this blog is not in any way sponsored by Zinta or Resolve Estate Law so this is a genuine recommendation as I believe in the good this approach can have on resolution or mitigation of disputes in this area. Food for thought.
