30/09/2020

Can a child treat his/her parent badly and still expect a share of the parent’s estate? The latest case highlights the answer.

You don’t need to scour the bookshops for a good story about the power struggles in a dysfunctional family.  Just read Mr Justice Slattery’s judgement in Grant v Grant (No.2) 2020 NSWSC1288  

This story pits daughter against parents, sister against siblings and parent against parent; all played out in the refined world of Sydney’s eastern suburbs and north shore with an occasional side trip to Cambridge in England.

The case is much too long to do full justice in this short article but is a clear example of a court refusing to grant a child a greater share of her mother’s estate due to her mistreatment of her mother during her mother’s life.

Nerez Grant sued her mother’s estate because her mother’s Will did not provide “adequate provision for (Nerez) proper maintenance, education or advancement in life”.

The Court confirmed that the decision as to whether to make a family provision order in favour of the daughter, Nerez, would be a two-stage process - first you decide if what she has received is adequate and, if not then, second, you work out what would be.

But there’s a “but”.  The relevant legislation (the NSW Succession Act) gives the Court the power to determine what is adequate, including the power to refuse to make any order even though the applicant has shown the Will to be inadequate. That is particularly so where there is evidence of mistreatment of the deceased by the child applying for more of the estate.

“The court should accept that the deceased … is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’.”

The Court is permitted to consider the circumstances in which the deceased’s relationship with their child broke down or was dysfunctional including the character of the applicant child.

In this case there was conflicting evidence of what Nerez had done for, and to, her parents, particularly her mother.  She maintained she’d been a loving daughter while the executor’s witnesses said quite the contrary.

The Court didn’t think much of the truthfulness of either Nerez or her daughter Kayasha (also involved in the proceedings).  It is possible to have a grudging admiration for the two women who represented themselves in the court proceedings because they couldn’t afford a lawyer.  It is also clear that the Court afforded them every opportunity and exercised considerable patience in helping them navigate the difficulties of conducting a court trial.  But that admiration cannot hide the fact that Mr Justice Slattery found both women were poor witnesses and their evidence was unreliable.  

On the other hand, the executor of the estate (Nerez’ brother) had a number of witnesses from both inside and outside the family, all of whom were found to be reliable and believable.

Nerez failed in her claim for provision out of her mother’s estate. The Court held that her ill treatment of her parents, particularly her mother, over a long period disentitled her to any further relief by way of family provision.
 
“Mrs Grant was afraid of her daughter Nerez with good reason. Nerez behaved with callous brutality towards both of her parents over decades…..  Nerez treated her mother as a creature to be frightened and then coerced into doing what she wanted. Any vestiges of mother-daughter affection had long disappeared between Nerez and Mrs Grant. Stung by the constant pain of Nerez’s drug taking, thefts, aggression, unpredictability and the shame she brought upon the family, Mrs Grant’s decision to keep her daughter at arm’s length was entirely understandable.”

It is sometimes said to parents: ‘Be kind to your children as they’re the ones who decide which nursing home you go into’.  It might also be said to children ‘Be kind to your parents, as they’re the ones who decide how much, if any, inheritance you’ll get.”

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222 or email info@townsendslaw.com.au to see how we can assist.