A destitute adult son left nothing in his mother’s will has been awarded a $150k benefit notwithstanding a history of hostility to her and stealing from her to support an ICE addiction.
Shirley Hartley’s estate of $1.25 mil consisted mainly of three homes – two in Cairns and one at Lake Eacham – one of which was left to each of three of the deceased’s sons.
She died in June 2016 of a brain tumour and her last will made 15 months earlier was accompanied by a statutory declaration explaining the reasons for the exclusion of her fourth son Craig from any benefit from her estate.
All four sons were in parlous financial circumstances.
Craig – who also had a history of incarceration – applied for a further provision but his application was opposed by his brother Shane on the grounds of “disentitling conduct” in the nature of stealing from the deceased, hostility to her, exposing her to violence by drug associates, causing damage to property as well as causing her “violence, stress and anxiety”.
Judge Dean Morzone QC – before whom the application was heard – noted section 41(2)(c) of the Succession Act entitled the court to refuse further provision to “any person whose character or conduct… disentitles him or her to the benefit of an order, or whose circumstances are such as to make such a refusal reasonable”.
He also observed that an adult son “is not in a strong position” to ask for further provision from a parent’s estate because he is presumed able to support himself unless some special need or special claim is demonstrated to justify the court’s intervention.
A variety of circumstances can establish a special claim, for example: contributions to build up the testator’s estate; helping him in other ways; having a physical or mental infirmity; having sustained a financial disaster; being unable to obtain employment; or having dependants who rely on him for support for whom he cannot adequately provide.
Craig “endures in hopeless circumstances”, His Honour remarked having regard to his receipt of a disability support pension as a consequence of a sports injury at age 20 and his living in community housing with no assets.
A testator’s duty owed to a “lame duck” – a child who has suffered setbacks or failures when compared to siblings – is to assist them with proper maintenance and support unless he or she “is morally or otherwise undeserving”.
Was the conduct which Shane complained of in that category?
“The disentitling character or conduct must be such as to displace the applicant’s otherwise meritorious claim,” reasoned the judge. “The more meritorious the applicant’s case for provision, the more reprehensible the conduct must be to disentitle the applicant to the benefit of an order or make such refusal reasonable”.
His Honour reflected that there was no breakdown in the relationship or estrangement between Craig and his mother , but “her energy and patience [with him] waned in her unwell state”.
Judge Morzone was not satisfied that Craig’s conduct was indeed “disentitling” referring to it as “a demonstration of his lame duck status consequent upon his tumultuous childhood, physical, sexual, and emotional abuse, exposure to drugs, and drug addicted reckless lifestyle”.
“Ineffective parenting and later adult influences entrenched his drug and alcohol addiction, which manifest in the behaviour now subject of complaint”.
His honour held that a $150,000 provision be made for Craig at the expense of his three brothers’ bequests, with the issue of costs of the application yet to be determined.