Published 22 Nov 2012
Author: David Cossalter
On 28 September 2012 the New South Wales Court of Appeal with a bench comprising of Allsop P, Basten JA and Barrett JA gave a decision on appeal. In this matter, the traditional view of an eligible person where there has been little or no contact between the deceased and an adult child applicant was altered.
In this contesting a will case the Appellant, Rita Melma, had not made contact with her mother for a period of 35 years. It was determined that while there had been no contact there were no hostilities between them which could amount to conduct which would disentitle or prohibit a child from making a claim on the estate of their parent. It was determined that a relationship breakdown was somewhat mutual and that both parties still maintained some knowledge of the others life through other family members.
The primary Judge, Hallen AsJ decided that the gap in the relationship and the estrangement between them was sufficient enough not to entitle Ms Melma to any benefit out of the estate of her late mother. The Court of Appeal reviewed and overturned this decision.
In doing so, the Court of Appeal was required to review the moral obligation of a testator while applying “accepted an acceptable social and community values” Allsop P at . The Court was also required to accept and assess “the values or morality of a civil society [that] underpin or inform … discretionary judgments” Allsop P .
Essentially the Court reviewed whether society would accept, and be of the opinion, that a testator in this circumstance and having regard to her knowledge about the financial circumstances of her daughter should have provided for her in her Will. The Court was also required to weigh this up with the proposition that a testator has a right to make no provision for a person in their Will and distribute their assets however they like. In answer to this the Court found that the circumstances of the relationship as a whole must be viewed prior to the Court determining that the testator was well founded in not providing for an eligible person.
The Court of Appeal reversed the decision of Hallen AsJ and found that an estrangement of 35 years in of itself is not sufficient to warrant a person not being provided for out of the estate. The Court identified that something extra would be necessary to disentitle someone essentially determining that at first instance a bare relationship is sufficient.
What this means for the current state of law is that while the Court will look at estrangement as a factor to be considered when making a decision, such estrangement is not a complete defence to a claim. The Court will now place significant consideration on the reasons for the estrangement and the relationship as a whole when determining if provision should be made for a particular Applicant.
This case opens the door for many persons who would have otherwise been prohibited from making a claim. A great decision.