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Keaton v Gumulak [2020] NSWSC 943 – Hallen J
This case concerned a claim for provision by the deceased’s adult daughter. The deceased died on 31 May 2018. She left a Will dated 27 May 2018. The plaintiff was the first child of the deceased, having been born to the deceased and her first partner. Shortly after the plaintiff’s birth, the deceased and the plaintiff’s father separated, and the deceased met John Joseph Gumulak (the defendant). The deceased and John had two children, being the defendant and another daughter. It was not in dispute between the parties that John would at times physically discipline the children.
The plaintiff left the family home when she was 16. She continued to receive some financial assistance from the deceased, however the precise amounts and regularity of this assistance was not disclosed. The plaintiff had three children, two from her first relationship and one from her second. In 2014, the plaintiff was diagnosed with PTSD and Borderline Personality Disorder. She believed that the PTSD was caused by the discipline and harsh treatment imposed upon her by her stepfather, although there was little medical evidence to support this belief.
By the deceased’s Will, she appointed the defendant as executor of her estate and bequeathed all of her jewellery to be shared between her youngest daughter and two of her granddaughters. She also gifted seven legacies of $10,000 each. One of these legacies went to the plaintiff. This was the only provision made for the plaintiff in the deceased’s Will. The rest and residue of the estate was divided between the defendant and the deceased’s youngest daughter. At the date of hearing, the agreed estimated value of the estate out of which provision could be made was $892,901.
The nature of the relationship between the deceased and the plaintiff was described by the plaintiff as very close, however there was some evidence which did not support this conclusion at times. The plaintiff focused on her relationship with her stepfather during her childhood, which she described as abusive. The plaintiff claimed that the deceased was aware of the abuse suffered by the plaintiff, however she did not do anything to intervene or prevent it.
Between 1986-2018, the relationship between the plaintiff and the deceased varied from close and supportive to distant at times. There was evidence of arguments that had taken place between the plaintiff and the deceased that resulted in periods of little to no contact, as well as evidence of a supportive relationship between the parties.
In 2014, the plaintiff was diagnosed with PTSD and Borderline Personality Disorder. The plaintiff contended that the deceased did not provide an appropriate level of support at this time. The plaintiff gave evidence that the deceased consistently denied the existence of her condition and the cause of it. When the deceased was diagnosed with cancer in 2016, the plaintiff was instructed not to visit her.
Ultimately, the defendant contended that the deterioration of the relationship between the plaintiff and the deceased was the responsibility of the plaintiff, due to the choices she made.
At the time of the trial, the plaintiff was living in rented accommodation with her two sons and father. She had a small amount of cash in the bank and two super accounts totalling approximately $50,000. She was on Centrelink benefits and received a small amount monthly in child support payments.
Decision:
His Honour considered the principles relevant to claims by adult children, particularly that the community does not expect a parent to look after his or her children for the rest of the child’s life, that there is no need for an applicant adult child to show some special need or some special claim and that the adult child’s lack of reserves to meet demands is a relevant consideration.
Hallen J considered the estrangement between the plaintiff and the deceased, noting that while it was for a significant period, it did not destroy the ties between the deceased and the plaintiff. He held that the nature of the relationship at the time of the deceased’s death did not preclude an order for provision being made in favour of the plaintiff.
His Honour considered that the plaintiff was not in a strong financial position and that in light of all of the circumstances, a lump sum of $10,000 made in the Will of the deceased constituted inadequate provision for the plaintiff.
The next question for his Honour to consider was the provision that would be adequate for the plaintiff. In deciding this point, his Honour considered that the plaintiff and the deceased had virtually no contact from late 2015 until the date of the deceased’s death. His Honour noted that, while estrangement does not preclude an order for provision, in this instance it restrained the amplitude of the provision to be made for her. In the circumstances, his Honour considered that in lieu of the provision made for her in the Will, the plaintiff should receive a lump sum of $95,000 to allow her to pay off all her debts and leave a fund for the exigencies of life.
His Honour ordered that the defendant’s costs be paid on the indemnity basis out of the estate of the deceased and that the plaintiff receive a specified gross lump sum instead of assessed costs, being $66,800, for her costs of the proceedings, to be paid out of the estate of the decease.
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