The much loved former Prime Minister and Aussie legend Bob Hawke died on 16 May 2019. His estate is now set to come before the Court as his daughter, Rosslyn, is preparing to take action to dispute the Will.
When he died, Bob had a Will in place that left his entire estate to his widow, Blanche d'Alpuget. By separate agreement to the Will, lump sum amounts of $750,000 each were provided to his children, Rosslyn, Susan and Steve as well as Blanche's son Louis.
The estate for distribution pursuant to the Will is large, including a family home estimated to be worth over $15M.
It has been reported that Rosslyn will be making a family provision claim on the estate pursuant to the Succession Act 2006 (NSW) 'the Act'.
Can an adult child of the deceased bring a claim?
The Act provides that a child of the deceased can bring a claim for increased provision (s.57(1)(c)). The test of whether an order for provision should be made out of an estate is set out in s.59(1)(c). The court must be satisfied that:
"(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
In Piercy v Douras  NSWSC 1013, a decision handed down on 9 August 2019 by Henry J, the Court considered a claim for provision by an adult son of the deceased. He was excluded completely from the will and the deceased left the entire estate to his widow from a second marriage (circumstances very similar to the Hawke estate).
Her Honour said that "While there are no special rules that apply to applications by adult children, the consideration of the facts that are relevant to determining whether an order for provision should be made in respect of an adult may be different to that of a child having regard to the passage of time and the differing nature of the relationship between that of a minor child and parent and an adult child and parent" .
She went on to say "there is no "presumptive testamentary entitlement of an [adult] offspring": Underwood v Gaudron  NSWCA 269 at , "and the question of the extent, if any, of a continuing moral obligation or responsibility owed by the deceased to [the Plaintiff] can only be considered in the context of all the circumstances in this case".
Impact of estrangement on claims
An issue that will likely be aired is whether the circumstances of a period of estrangement between Rosslyn and her father will have any impact on her claim. Rosslyn had been estranged from her father allegedly since his separation from her mother in 1995 and marriage to Blanche that same year. The estrangement and its causes need to be considered by the Court when considering her claim on the estate (see Wheatley v Wheatley  NSWCA 262 (at ).
In Neal v Neal  NSWSC an 8 year period of estrangement, with alleged bad conduct and an AVO against the plaintiff was not sufficient to prevent Slattery J from providing him with a legacy of $400,000 from a $2.8M estate. The plaintiff argued that he had made reconciliation attempts and submitted that he had done nothing which would warrant his exclusion from the Will (his other two siblings were included), and he had financial need to justify some order for provision being made.
However, in Piercy v Douras  NSWSC 1013 the plaintiff's claim was dismissed, despite only a short period of estrangement (only one year prior to death) and the plaintiff and the deceased continuing to work together (their relationship was as employees no longer father/son).
The Court placed significant weight on the other demands on the small estate. The capacity and resources in the estate were small (the estate was only $643,000) as most had been distributed due to recent final property orders made in Family Law proceedings which led to the Deceased's first wife receiving a large amount of the property and other assets held in the deceased's name and in their joint names.
It is clear that the Court's assessment of whether to make an order for provision is a multifaceted evaluative approach. The existence of any estrangement between an adult child applicant and a deceased is a relevant factor to consider, including the causes of any estrangement between them, but the existence of an estrangement is not determinative (see Burke v Burke  NSWCA 195 at  and ).
As widow, Blanche is the natural object of Bob's Will. If the estate can prove that Bob had provided for Rosslyn over many years, including the provision of $750,000 in the separate agreement, the potential estrangement argument may be the least of Rosslyn's problems.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.