Would you gamble the certainty of your estate?

In Andrew v Andrew [2012] NSWCA 308, the New South Wales Court of Appeal considered
the question of “Why should a mother leave anything to an adult daughter who has drifted away over a long period and become  estranged?”  In that case the period of estrangement was 35 years.


The facts were in brief that the testator died leaving five children, one of whom was the appellant. By her will the testator left a legacy of $10,000 to the appellant. The rest of the available estate was distributed to the testator’s other children- about $440,000 to the testator’s son and $120,000 to her other three daughters (not including the appellant).


As far as could be determined from the parties’ evidence, the reason for the testator’s much smaller provision for the appellant was that there had been a 35 year period of estrangement between the appellant and her mother. It is worth noting that:

the reason for the estrangement was not clear from the evidence though it may have lay in concerns the appellant had about whether her parents approved of aspects of her lifestyle. According to the appellant’s evidence the relationship between her and her parents “‘petered out”;
  
the testator had written two documents stating reasons for why she left the appellant only $10,000. In one of those notes she said that the appellant had been omitted from the bulk of the assets in the
estate because the appellant“had not acted as a daughter should in our lifetime, and should not be remembered as our other children have, in the dispersal of our assets”.


It was found that the appellant was in "relative need". Her circumstances included that she: was unemployed and unlikely to find work in Port Macquarie where she lived; relied on Centrelink benefits and had assets of about $4,200 in remaining superannuation; shared the care of a ten year old
foster child with Asperger's syndrome; had throughout her life sought to assist the underprivileged and to pursue altruistic goals rather than seeking personal gain; and had a son aged 20 in Queensland.



It was suggested that in cases of estrangement attention may need to be paid to the apparent cause of the estrangement. In the present matter the cause was not clear from the evidence and there was no suggestion of any incident or cause of the hostility.


While there may well be cases where a testator is justified in making no provision for an adult child, the majority in Andrew v Andrew held that this was not such a case. It was ordered by two of the judges that in lieu of the legacy of $10,000, a legacy of $60,000 be made (an additional $50,000) to the appellant.


As noted in the judgment, the determination of such claims can be difficult as they call into question a
range of considerations about moral duty and obligations in the family context.  This difficulty is reflected for example in comments by Basten JA at paragraph 57 of the judgment which acknowledge that “the mother's reaction was entirely understandable and might have been shared by many parents” but his honour was “not persuaded that it justified the reduction of the daughter's share in the
estate”.