Can a parent successfully disinherit children or step-children who allege sexual abuse against them, a crime of which they are subsequently acquitted by a court?
Adam Fornari died on 13 August 2022, aged 58. His assets – the net value of which was just in excess of $1,000,000 – consisted in the main, of two farm blocks of 670 acres near Mudgee in New South Wales.
He had been in a 20 year relationship with Karen Hibberd until December 2019. Karen’s three infant children from a prior relationship – Kirt, Kimberley and Kyle then aged 7, 4 and 2 – began living with the deceased at the start of the couple’s relationship.
The family remained together at Faulconbridge – in the Blue Mountains west of Sydney – with Adam present and involved in the bringing up of the three children for the whole of their childhood in the absence of their biological father.
The couple purchased the Mudgee farms in 2003 and the family holidayed there regularly.
Kimberley left school at 18 and had three children from 2 relationships and by 2019 she, her 3 children and then partner Wayne moved in to the Faulconbridge home.
Kyle and his child and his partner Taylor and her child also moved in in October 2019.
Kirt also lived at the property, sleeping on the couch. So crowded wad the home – with Kimberley’s two eldest children sleeping in the main bedroom – that the only place for Adam to sleep was in a pine log cubby house in the backyard.
Those arrangements put Adam’s relationship with the other occupants – none of the adults among them having jobs – under severe stress.
In December 2019 Kimberley revealed to her mother that she had been sexually abused by Adam from age 6 until she was 12. That bombshell lead to Adam’s arrest for crimes of which he was ultimately acquitted at trial.
Unsurprisingly, his relationship with all of his step-children came to an abrupt end and they never spoke again.
So did his relationship with Karen with whom he reached a property settlement in August 2021 transferring the Faulconbridge residence to her. Adam received the two farm blocks and a portion of Karen’s superanuation.
Adam’s life went downhill from there.
His health took a turn for the worse, he lost his job and the day before he was to move into the farmhouse it mysteriously burned to the ground.
His sister Debra Wright – a full time police officer with relationship problems of her own – provided moral support and spent her own money to assist with legal costs and other expenses he couldn’t afford to meet.
She also regularly did his grocery shopping and prepared his meals. Adam was in fact, emotionally and financially dependent on her.
For that reason, his will of March 2022 left his whole estate to her.
All three of the stepchildren challenged the will in the NSW Supreme Court and sought provision be made for them out of the estate.
Kirt’s claim was resolved prior to the trial and so the court was left to consider what provision if any, should be made for Kimberley and for Kyle.
Debra accepted they were eligible to seek a provision as – although they were no longer stepchildren – they had been part of the deceased’s household and had been financial dependents.
Kimberley and Kyle had though to prove the factors in their favour, that warranted a provision being made.
Justice James Hmelnitsky KC agreed factors had been established – in that they had grown up in Adam’s household; he had been their father figure; he had been in a long term relationship with their mother; they had little if any contact with their biological father; and the family home and farm blocks had been co-owned by the couple – that warranted their applications for provision.
His honour then turned his mind to whether they should each receive the $200,000 they claimed from the estate despite their total estrangement from the deceased.
Debra argued that no provision should be made given the catastrophic allegations of sexual abuse that destroyed the relationship and resulted in the family rupture. Their stepfather – she asserted – had no longer, any moral duty to provide for their needs as adult children of a former partner.
Justice Hmelnitsky agreed.
“There is real doubt about whether the community would expect the deceased to make any provision for the maintenance of Kimberley and Kyle in his will,” he observed.
They were after all adult children of a former partner, estranged, and the deceased had already “done more than what society would ordinarily expect”.
Also relevant was that the estate had been left to his sister Debra in no way to punish the stepchildren but rather, to reflect his “genuine and heartfelt affection for his sister, whose unquestioning support he understandably wished to recognise”.
Kimberley and Kyle were nevertheless held to be entitled to some small provision for two reasons. First, the extent of the historical connection between them and the deceased as their parent for virtually all their childhood and second because there was no evidence by which Kimberley could be blamed for her unproved allegations and Kyle could not be blamed for siding with his sister.
Thus, although the estrangement caused a “significant weakening of the moral obligations”, it did not entirely negative the deceased’s obligations.
The judge ordered Kimberley receive $50,000 and Kyle $40,000. Kimberley received more as she was found to have greater financial need.
Neither award would give them financial independence, but the judge’s view was that the deceased had no obligation to achieve that for them.
The question of costs was left for another day. The amounts ultimately payable to Kimberley and Kyle may in fact end up being reduced by costs orders, particularly if Debra had offered at any time to pay them more than what was ultimately ordered.
Note that in Queensland, neither Kimberley or Kyle would have been eligible to seek any provision as their entitlement is deemed to have ceased when their mother’s relationship with the deceased ended – before his death – at which time they ceased to be his stepchildren.
Wilson v Wright; Wilson v Wright [2024] NSWSC 519 Hmelnitsky J, 7 May 2024 Read case