A Parent’s Obligation Is To Their Children: Grandchildren Must Exercise Patience!

13 SEPTEMBER 2017 ESTATE DISPUTES CONTESTING A WILL PROBATE & DECEASED ESTATES
money claim

In Wilcox v Wilcox [2012] NSWSC 1138, the deceased owned a rural land on several parcels which he operated as a grazing business. He had a daughter who held an interest in the business and two grandsons whom he apparently groomed to one day take over his holdings.

The grazier’s Will left everything to his daughter, presumably on the assumption that his grandsons would eventually inherit the business and land from her. The two grandsons felt that the land and business ought to have been left to them. The two grandsons made a claim on the estate seeking orders for family provision from their grandfather’s estate under s.59 of the Succession Act 2006.

One of the grandsons agreed to a settlement out of Court, but the other, who was described by the judge as having “a highly developed and unhealthy sense of entitlement”, pursued his claim. The judge noted at [13] of the judgment that the general position in relation to the claim by a grandchild claiming an entitlement to provision from a grandparent’s estate is that:

  1. Under our law, grandchildren have no claim as of right to the beneficence of a grandparent;

  2. As a general rule a grandparent generally does not have a responsibility to make provision for a grandchild;

  3. It should not be assumed that generosity by a grandparent to a grandchild, including by the payment of school fees, automatically converts the relationship into one of obligation to provide for the grandchild on the death of the grandparent;

  4. In the absence of special circumstances, such generosity ordinarily has no effect in law other than to leave the grandchild with a life-long moral debt to the memory of his or her grandparents.

  5. A grandchild taken in by and having been dependent on a grandparent more in the role of a parent will have a claim more akin to that of a child;

  6. Simply being family does not create an obligation for the grandparent to provide or a right for the grandchild to inherit;

  7. Generosity by the grandparent in life does not create a relationship of dependence with the grandchild, nor entitle the grandchild to provision in the grandparent’s will; and

  8. Any expected inheritance from the grandchild’s parents is also to be considered.

The Judge referred to the decision of Hallen As. J. in Bowditch v NSW Trustee & Guardian, [2012] NSWSC 275, where his Honour identified the following general circumstances which may alter the general position of a grandchild in a particular case:

  • If a child has lost his or her parents at an early age, and has been taken in by the grandparents, and the child resides with the grandparents in circumstances where the grandparents become in loco parentis, this may give rise to an obligation to make provision in favour of the grandchild;

  • A moral obligation may be created in the particular circumstances of the case, for example, by reason of care and affection provided to the grandchild by the grandparent.

The grandson was found to have squandered his own earning capacity in expectation of receiving an inheritance from his grandfather. Pembroke J. ultimately ordered the parties to obtain further evidence on the viability of dividing up the parcels of land upon which the grazing operations were conducted, and, after a further hearing his Honour concluded that in the circumstances of the case “a just and wise testator” would have made modest provision for the grandson from their estate. His Honour made orders for the grandson to receive provision from his grandfather’s estate and ordered the estate to pay his costs of the proceedings.

On appeal to the New South Wales Court of Appeal, the judgment of Pembroke J. was set aside and proceedings brought by the grandson were dismissed (see Chapple v Wilcox [2014] NSWCA 392). This was on grounds that the Court of Appeal considered that his Honour had not articulated any cogent basis to depart from the Grandfather’s intention under his will to leave his estate to his daughter (the claimant’s mother). The Court of Appeal considered that whilst the primary judge had made reference to the applicable principles, he did not accord proper weight to the facts of the case which demonstrated that the grandfather had not ever in fact acted in loco parentis to the grandson.

In David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654, Kunc J, when deciding that it was appropriate to make modest provision in favour of a grandchild in the , his Honour noted that:

“Given a relationship that was at times more maternal than grandmaternal and David's ongoing health issues, it would accord with community standards of what might be right and proper for a greater provision to have been made for David to meet the exigencies of his current situation. Putting this another way, community standards recognise that a parent may have to provide for a sick adult child. In this case, where David's mother cannot do so, the history of their relationship justifies that expectation being transferred to Mrs Rich.”

Fox & Staniland have considerable experience in acting for claimants and estates in Family Provision claims and is available to provide advice on making and defending claims which will take into account the particular circumstances of your case.