Judges in family provision cases are frequently asked to consider the relationship between the applicant and the deceased person, including the nature and duration of the relationship (Succession Act 2006 (NSW) s.60(2)(b)) as well as the character and conduct of the applicant or any other person (s. 60(2)(m) and (n)). This article provides an overview on the Supreme Court of New South Wales decision in the family provision case Dodd v Dodd [2022] NSWSC 199.
Dodd v Dodd [2022] NSWSC 199
The late John Dodd left his only son Peter out of his last will, instead giving the whole of his estate to his sister Marilyn.
The deceased explained his reasons for excluding Peter from his will in a 'Succession Act s.100 statement' in which he described an irretrievable breakdown of the relationship after a long period of animosity and a physical assault.
Marilyn argued that Peter had been aggressive and violent toward the deceased and that they had been estranged for over 18 years.
Peter countered with a claim that he had been actively trying to improve the relationship with his father, but that his father was rejecting those attempts. Evidence was heard that the last violent incident between the two was almost 20 years prior and that Peter had made numerous attempts to apologise and reconcile but the deceased remained closed to the relationship.
Peter relied upon a medico legal report from Dr Potter, a psychiatrist. Dr Potter opined:
"It is clinically reasonable to accept that in significant part, [Peter's] disturbing emotional expression and struggle in intimate relationships is a reflection of having lived in a household of domestic violence and a rejection from a father". [97]
Dr Potter went on to describe the continued effort Peter made with his father despite ongoing rejection and said:
"Overall, that Peter Dodd is a very disturbed man and his disturbance is most likely due to be out of life trauma - emotional trauma - through parental rejection and parental conflict; that is, between the parents, which has led to him leading a life where he's struggled with living, work and relationships". [101]
At the time of the hearing Peter was homeless, living out of his car. He was in receipt of a Centrelink disability pension but his liabilities far exceeded his assets. He was in need of psychiatric medical treatment and dentistry.
Slattery J considered the s.100 statement prepared by the deceased and said:
"The deceased had inflexible rules. A man like that would have been unable to accept that he may have been partly responsible for his son's attitude towards him and the hostility between them.
The s. 100 statement contains no confession by the deceased that he ill-treated his wife or that he put little time into his son's youth. A more honest document might have some weight with the Court, given the Court's findings. These statements carry little or no weight". [72]
Slattery J accepted that Peter had made attempts to reconcile the relationship and accepted the plaintiff's submissions that it was not a true estrangement case. He noted:
"The dynamic of the relationship has its origins long ago and the deceased bears significant responsibility for the poverty of the relationship due to his conduct neglecting Peter's emotional needs for a proper relationship with his father, when Peter was very young". [146]
Slattery J inferred that the deceased's rejection of Peter was a significant factor behind his current living and financial need.
The plaintiff was successful and received a legacy of $520,000 from a net estate of $800,000 once legal costs of the parties were paid.
Conclusion
Slattery J summarized the issues perfectly in the Dodd case:
"The purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased's legal or moral duty to be a good and responsible parent; nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased.
But the Court may take into account past conduct of the deceased where it provides an explanation for the current position of the plaintiff giving rise to additional needs and the deceased's past conduct and proven abuse is not irrelevant ere it to have the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff's need for provision". [130 and 131]
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