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Man dies leaving just $100 dollars to estranged daughter
In October 2019, an 86-year-old man died, leaving behind three
children and an estate valued at $368,805.
The deceased had separated from the children's mother in
2004 and she died in 2012.
For over a decade prior to the deceased's death, he and his
eldest child, B, were completely estranged. This followed B
supporting her mother in the family law proceedings between her
parents.
The deceased's 2008 will bequeathed just $100 dollars to B
and included a detailed explanation for this rejection.
The man's will appointed B's siblings, G and C, as
executors of the estate and left the whole of that estate to them
in equal shares, save for the $100 left to B.
Estranged daughter seeks family provision order
B commenced proceedings in the Supreme Court of NSW for a family
provision order granting her a larger share of her father's
estate.
It was not in dispute that B was an eligible person for the
purposes of seeking such an order.
The question before the court was whether an order for provision
ought to be made. This was up to the court's discretion.
CASE A
The case for the daughter's
siblings, G and C
CASE B
The case for the daughter,
B
In determining whether to make a family provision order, the
court is entitled to consider various matters referenced in the
legislation, including evidence of our father's testamentary
intentions, the nature of his relationship with our sister and her
conduct.
Our father was very clear in his will what his testamentary
intentions were. His will stated: "I DECLARE that I have not
made any provision in this my Will, other than [$100] for my
daughter [B] and/or her children because: ." and then he went
on to list the many reasons why. These reasons included that B
would physically assault him by throwing fruit and vegetables at
him, that B damaged the family home to prevent its sale, that B
threatened him with physical harm, resulting in him obtaining an
apprehended violence order against her, and that B displayed a lack
of respect for him, which caused him great anxiety and stress
during his life.
After our father executed his will, he said to one of us:
"I am only leaving [B] the sum of $100 because of her terrible
abusive treatment of me and because she caused me financial
ruin."
For the last 12 years of his life, our father and sister were
completely estranged. B's conduct caused this estrangement. As
our father's will outlines, she engaged in clear acts of
hostility and harassment towards him. We also witnessed this during
his lifetime. Our sister used to throw things at him and there were
occasions when one of us was required to intervene to stop the
assault from escalating.
There were also occasions when one of us would return home to
find our father sitting in his car in front of the house, feeling
too intimidated to go inside because he feared another assault by
our sister.
Given our father's clear testamentary intentions, B's
appalling conduct towards him and the long-term estrangement that
she caused, the court should reject B's application for a
family provision order.
My father had a moral obligation to provide for all of his
children, including me, particularly as I have limited financial
means, unlike my siblings.
My conduct towards my father has been completely
mischaracterised by my father and siblings.
It is true that there was tension between myself and my father,
but the reason for this tension was that my father was extremely
angry with me for what he saw as me siding with my mother in their
family law proceedings. This unjustified perception influenced the
drafting of his will, so that his mindset was not based in reality.
His testamentary statements should be read through the prism of
enmity with which he viewed me.
My father was a violent and abusive parent who consumed
excessive quantities of alcohol, particularly his homemade wine,
Tsiporo. He was drunk three to four times per week, which made him
aggressive towards my mother and towards me when I would try to
intervene.
I admit that I may have thrown fruit in the presence of my
father, but only on the floor, not at him.
Although I left the family home under the terms of an AVO in
2007, it had been a toxic environment where I feared for my
physical safety and wellbeing. It is my father who caused our
estrangement.
As a result of my father's conduct, I have developed a
number of health problems, including high blood pressure, stress,
depression, dermatitis and eczema.
My father had a moral duty to provide for me. This duty is not
impacted by the estrangement that he caused, nor by the clauses in
his will that were written in anger over my concern for my
mother's wellbeing. The court should therefore exercise its
discretion to grant my application for a family provision
order.
