Obligation of a parent to provide for their child
88In Taylor v Farrugia [2009] NSWSC 801 Brereton J discussed the applicable principles which relate to a claim by an adult child against the estate of a parent, at [57] - [58]:
"It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].
Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent."
89There was no requirement that the deceased provide for her children equally (see, for example, Carey v Robson (2009) NSWSC 1142 at [57]). In any case the provision made by the deceased for each of her children was not "vastly disproportionate" as it was in Carey v Robson. The plaintiff received 20 per cent less of the estate than Stephen, and only 10 per cent less than the other children. The discrepancy is amply explained by the small estate, the contribution Stephen made to the deceased's welfare and the estrangement between the plaintiff and the deceased.
90Section 60(m) of the Succession Act expressly states that the Court may consider, when determining whether to make a family provision order, the character and conduct of the applicant before and after the date of the death of the deceased person.
91While it is appropriate to consider the nature of relationship between the plaintiff and the deceased at this stage, the focus of the Succession Act is not finding out where the fault lies in a difficult relationship, but whether, in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he or she in fact did to constitute proper or adequate provision for the plaintiff : Young J in Walker v Walker (NSWSC, 17 May 1996, unreported). His Honour in noted that:
"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously...It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between."
92In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, the court said, in relation to a situation of disharmony between parent and child that the moral duty of a testator to provide for their children continues:
"If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life.
The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed."
93In certain circumstances, however, conduct of a child can justify a reduced, or no, provision to be made from the will of a parent. This was recognised by Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71] - [72]:
"It is one thing to make provision for a child, even an adult, where the court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat 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.
It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years."
94In my view the conduct of Denise in the last years of the deceased's life amounts to conduct justifying reduced provision. In this case the deceased recognised her continuing duty to Denise despite their estrangement and made provision for her as to 15 per cent of her estate.