The Facts
Man dies leaving nothing to transgender daughter in his will
A 93-year-old man died on 22 March 2017.
In his lifetime, he had survived the Holocaust, emigrated to Australia and become a wealthy property developer.
He left behind a wife, two adult children and an Australian estate worth about $12.4 million.
By his will dated 15 May 2012, the deceased left the whole of his estate to his wife if she survived him. She was also appointed his executor.
If his wife did not survive him, then the deceased’s children and grandchildren would inherit his estate.
The deceased’s son was a businessman and operated a successful company.
The deceased also had a child who was biologically born a male. She identified as transgender and had been diagnosed with gender dysphoria.
The deceased and his wife found it difficult to accept their daughter’s identity. They were Orthodox Jews and had given their children a traditional Jewish family upbringing.
They became estranged from their daughter due to a variety of actions she took to distress and embarrass them.
However, the deceased continued to provide for his daughter financially until the day he died.
Daughter applies to Supreme Court for family provision order
Upon his death, the daughter applied to the Supreme Court for a family provision order.
She argued that her father owed her a moral duty to provide for her maintenance and support after his death, and asked the court for between $3.7 million and $5.56 million out of her father’s estate.
Her mother, as the executor of her husband’s will, responded that he owed no such moral duty and the daughter should not be granted the amount she was asking for from the estate.
Expert commentary on the court's decision
Supreme Court finds in favour of daughter
In Jessica Joss v Judith Joss (executor of the estate of Peter Joss, deceased) [2020] VSC 424, the Supreme Court of Victoria ruled in favour of the daughter, Jessica Joss.
The court ruled that Jessica’s father, Peter Joss, had a moral duty to provide for her at the time of his death.
The court ordered that the sum of $3.225 million be paid out of Peter Joss’s estate as adequate provision for Jessica’s proper maintenance and support.
Deceased’s wishes can be overridden if deceased breaches their moral duty
This case demonstrates the sometimes complex and often unpredictable nature of family provision claims. Legislative provisions within part IV of the Victorian Administration and Probate Act 1958 (“the Act”), similar to corresponding provisions in other state acts, are designed to make sure that a person is not left unable to support and maintain themselves.
As the court explained in this case, a person has the freedom to dispose of their estate as they see fit. The court will only interfere with this freedom as provided for by the relevant act.
Under section 91 of the Act, where a person has breached their moral duty to those for whom they have responsibility, the court has the power to override the testator’s wishes and make a family provision order to ensure the proper maintenance and support of those people.
Deceased owed moral duty to his daughter
In determining whether Peter Joss owed a moral duty to Jessica, the court said that its role was to consider what, according to current community standards, he should have considered his responsibility.
The court concluded that he did owe a moral duty to Jessica, notwithstanding her attitude and behaviour over the years. Of particular relevance was that Peter had allowed his daughter to become financially dependent on him, losing much if not all of her capacity for employment.
The court noted that “family disharmony or dysfunction, and a parent’s disappointment in a child, are commonplace in family relationships; such matters are only one of the factors to be considered by the court under the Act”.
Court must consider deceased’s testamentary intentions
In determining whether to make a family provision order, the primary factor that the court must consider is the deceased’s testamentary intentions, as evidenced in the will.
In accordance with the principle of testamentary freedom, the court will consider the provisions of the will and note any further evidence of the reasons for the deceased making those dispositions in the will.
Peter Joss’s will made no provision for Ronald or Jessica, unless Judith pre-deceased him.
If, however, his wife Judith had died first, their son, Ronald, would receive certain specific shares, and the remainder of the estate would have been apportioned between Ronald, Jessica, and Ronald’s children.
Therefore, Jessica was not completely excluded from Peter’s consideration under the will. But neither she nor Ronald nor any of the grandchildren would inherit anything from him directly if Judith survived Peter.
Court must consider deceased’s reasons for making disposition
The court must also consider why Peter made the dispositions that he did in his will.
Referring to Peter’s letter given to Jessica after his death, the court said it was understandable in the circumstances that Peter believed he had done enough to discharge his obligations to her.
Court may consider additional factors
In deciding whether to make an order for provision and the amount of any provision, the court may also take into account the factors listed in section 91A of the Act.
These include, among other things, the size of the estate, the relationship between the deceased and the applicant, including the degree of dependency the applicant had on the deceased, and the “competing claims” of other family members.
In this case, the primary competing claim was that of the widow, Judith Joss. She received the benefit of the deceased’s trusts and companies. It was not in dispute that Judith lives comfortably on income provided by the Joss companies. It was not suggested that making a family provision order would adversely affect Judith’s standard of living or ability to support herself.
Jessica, on the contrary, had no superannuation, savings, or substantial assets. She had a short but significant history of mental illness and limited means of independently supporting herself.
Court finds daughter entitled to provision from estate
It was clear that Jessica’s actions had contributed to her disadvantaged position, and that her malicious behaviour towards her parents was a relevant consideration when measuring her father’s moral duty to provide for her in his will. However, the court found Jessica was still entitled to a provision from her father’s relatively large estate.
The case cites the principles for claims by adult children, pronounced by Justice Hallen in Walsh v Walsh [2013] NSWSC 1065. These principles make it clear that if an adult child remains a dependent of a parent, the community will generally expect the parent to make provision to fulfil that ongoing dependency after death.
According to Justice Hallen:
Court makes a provision of $3.225 million
The court determined that the sum of $3.225 million would constitute adequate provision for Jessica’s proper maintenance and support.
This included $2.4 million, which was the amount needed to provide an income stream equivalent to Jessica’s current allowance, together with CPI increases.
It also included $600,000 for Jessica’s accommodation needs and a further $25,000 for furniture.
The court also allowed an amount of $100,000 for the costs of Jessica’s gender reassignment surgery. It was noted by the court that nobody disputed that Jessica’s mental health would benefit from having the surgery.
The court allowed a further $100,000 to cover all miscellaneous items.
For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.