Background
The appellant was the daughter of the ex-spouse and the deceased, and the sole beneficiary of the estate. Whilst the ex-spouse was an eligible claimant under category (d) of s57(1) of the Succession Act 2006 (NSW), she was also required to prove pursuant to s59(1) that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application.”
At first instance Brereton J found that, despite her attitude to the deceased since their relationship ended 24 years beforehand involving “relentless persecution in which she carried into effect as best she could her stated aim of making the deceased’s life a misery by pursuing him and his resources in every way she could”, that:
- There were still factors warranting the making of the application;
- The estate was ample to make adequate provision;
- The ex-spouse was still in considerable need and reliant on social security whilst her daughter she raised would inherit in excess of $5million; and
- She remained a natural object of testamentary recognition.
Accordingly, she was awarded $750,000 at first instance.
The Court of Appeal
The Court of Appeal found that the ex-spouse’s circumstances and the size of the estate were matters relevant to the adequacy of provision, not whether there were factors warranting and whether she was a natural object of recognition.
Importantly, the ex-spouse and the deceased had concluded a property settlement by financial orders resolved in 1992. They had been separated for some 24 years, and divorced some 19 years, before the deceased’s death, and their relationship involved only 19 months of cohabitation. However Brereton J saw significance in the fact that “the relationship, marriage and its breakdown had had a serious impact on the rest of the respondent’s life“. He referred to the combination of the unusual and enduring impact of the relationship and marriage on the ex-spouse’s current circumstances of need. The Court of Appeal however looked further – they found that the ex-spouse’s financial needs were due to a number of factors unrelated to her relationship with the deceased.
Brereton J had found ‘factors warranting’ based on a continuing disability, manifested by the ex-spouse’s persecution of the deceased and her propensity for conflict manifested in her difficult relationship with her daughters. The Court of Appeal disagreed, finding that the medical evidence from 1994 (of the unusually enduring impact of the separation and marriage breakdown on the ex-spouse) did not justify the finding of a continued disability.
The other matters relied on by the Court of Appeal were that:
- The deceased had meticulously complied with his child support obligations since separation;
- The respondent’s financial circumstances were largely attributable to injuries from a series of motor vehicle accidents, and to legal costs incurred by her relentless pursuit of the deceased; and
- There was no evidence establishing a causal link between the domestic relationship and her difficulties at the hearing.
On the matter of the previous Family Court property settlement, the Court of Appeal stated that although the decision of Dijkhuijs v Barclay (1988) NSWLR 639 showed “a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.”
An application for special leave to the High Court was refused.
This article was written by Michael Henley, Partner, Philip Davis, Special Counsel, and Guy Moloney, Senior Associate.
