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Estranged Adopted Son Left out of Father's Will Receives Provision

Dodd v Dodd [2022] NSWSC 199

Slattery J



Factual Summary


Estranged Adopted Son Left out of Father's Will Receives Provision

This recent NSW Supreme Court decision concerns the deceased, John Dodd, who excluded his only son, Peter Dodd, the plaintiff, from his last will in 2007. John’s will conferred the whole of his estate to his sister, Marilyn Dodd, the defendant. Peter, aged 51, commenced proceedings for a Family Provision claim pursuant to the Succession Act 2006 (NSW) Chapter 3, on the basis that he was not provided adequate provision for his maintenance and advancement in life.


The defendant, Marilyn, opposed this and claimed the deceased’s testamentary intentions should be upheld due to the plaintiff’s violent and aggressive conduct towards John, and their estrangement for 18 years prior to the deceased’s death. However, Peter claimed he endeavoured to improve his relationship with the deceased and his attempts were rejected. The plaintiff claimed past exhibitions of his violent demeanour were due to his father’s rejection of him as a child. Further, the plaintiff was in dire financial need.



Relationship between the Deceased and his Son


The deceased and his wife, Colleen Dodd, adopted Peter in 1970 following multiple miscarriages and stillbirths. The deceased and his wife had a tumultuous marriage. Colleen presented evidence regarding the deceased’s heavy consumption of alcohol and his domestic violence towards her during their marriage, which Peter witnessed. The deceased had limited interaction with Peter during his formative years which had a significant emotional impact on him throughout his adult life.


During his childhood, the deceased punished Peter in the form of physical abuse and neglected his emotional needs. This minimal relationship deteriorated during Peter’s teenage years in instances of Peter’s drug use and job loss. Additionally, Peter gave evidence that the deceased was physically aggressive and threatening towards him. In 1990, when the deceased was inebriated, he threatened to shoot Peter with a gun.


From 1991 onwards, Peter had a history of engaging in criminal conduct, and was incarcerated on multiple occasions, including for aggravated break and enter and assault occasioning actual bodily harm. The plaintiff’s criminal activity meant he was engaged in intermittent employment.


An expert psychiatrist, Doctor Potter, summarised the plaintiff’s emotional state:


“Overall, that Peter Dodd is a very disturbed man and his disturbance is most likely due to be out of a life of trauma - emotional trauma - through parental rejection and parental conflict; that is, between the parents, which has then led to him leading a life where he’s struggled with living, work and relationships.”



The Deceased’s Wills


In light of the deceased and his son’s tumultuous relationship, the deceased did not provide for the plaintiff in his 1996 will. The whole of John’s estate was to be conferred upon his brother, Alan, and sister, Marilyn. Accompanying his 1996 will, the deceased outlined his reasons for Peter’s exclusion, namely the animosity prevalent in their relationship, Peter’s verbal abuse and instances of Peter’s physical abuse towards the deceased. The deceased stipulated that their relationship was ‘beyond salvaging and further has irretrievably broken down’. At the time these statements were made, the plaintiff was 27 years old.


Despite their distant relationship, the deceased offered for the plaintiff to live with him at his property in Shoal Bay in July 2001 after the plaintiff was released from gaol on a twelve-month parole period. This demonstrated the deceased’s attempt to provide for his son, despite Peter not being mentioned in the 1996 will. Peter resided with the deceased for nine months of his parole period, until April 2002, where Peter physically assaulted the deceased and subsequently the deceased was granted an Apprehended Domestic Violence Order against the plaintiff in May 2002. The deceased had a continued apprehension about his safety in the presence of Peter and did not allow him to enter his house following this assault.


John’s 2007 will reflected similar testamentary intentions towards Peter and included Peter’s 2002 assault as a reason for Peter being excluded from his will. The deceased did not make any changes to his will in the twelve years following up until his death. However, during this period, Peter provided evidence of his continued attempts to reconcile his relationship with his father, the efforts of which were refused by the deceased. The Court reasoned that the deceased was set in his ways and there was nothing Peter could do to change his father’s opinion of him.



Financial Needs of the Parties


The deceased’s sister, Marilyn did not have pressing financial need for provision under the will, with her primary concern being renovations to her house which she owned unencumbered. The Court held that while Marilyn was not required to prove her need for her entitlements under the will, the Court would consider her circumstances, ‘as a basis to retain the provision made for her under the will’.


The estate was worth $1,012,000 following the sale of the deceased’s property at Shoal Bay and the liquidation of his superannuation. The residue of the estate after legal expenses was approximately $800,000.


Slattery J applied the Succession Act 2006 (NSW) s 59(1)(c) to determine whether an order for provision should be made for Peter under the will.


The Court discussed Peter’s pressing housing and medical needs; being that at the time of the hearing he was living out of his car and required therapy treatment and dental work. Peter’s perilous financial circumstances meant he had a strong claim on his father’s estate. However, this was held not to be the only significant factor impacting a plaintiff’s success. The Court discussed Chan v Chan [2016] NSW CA 222, stating Peter’s relationship as the only son of the deceased who was not estranged from him was highly relevant in the outcome of the decision.


The Court held it was entitled to consider the past conduct of the deceased where it explains the current needs of the plaintiff, pursuant to Litchfield v Smith & Timgate [2010] VSC 466. This included considering the deceased’s abuse towards the plaintiff and assessing whether there was a causal connection between the abuse and the plaintiff requiring additional provision.


In relation to Peter’s character and past criminal conduct, the Court discussed that this was not a bar to provision. The Court applied Bienke v Bienke; the estate of the late Harold Bienke [2002] NSWSC 804, where an order was made in favour of the plaintiff who had been to prison and had a chronic history of drug and alcohol abuse and a gambling addiction.


In light of Peter’s criminal history and to circumvent possible squandering of any provision made to him, the Court elected to place the funds in a protective trust for the plaintiff. The Court engaged its powers under the Succession Act pursuant to ss 65 and 66, which extend to an order of provision for a plaintiff to be held by a trustee on protective trusts for the plaintiff (The Claim v Public Trustee [2010] NSWSC 970 at [20]).


Judgment


Pursuant to the reasoning above, the Court ordered in favour of the plaintiff an amount of $520,000 to be paid out of the deceased’s estate. This was ordered to be held on trust on behalf of the plaintiff due to his character and the risk of misapplication of the funds. The Court ordered the defendant’s costs be paid out of the estate on the indemnity basis and the plaintiff’s costs be paid out of the estate on the ordinary basis.




This case is significant as it demonstrates the range of factors the Court considers in determining a plaintiff’s prospects in a Family Provision claim. Despite the father’s explicit account of his reasons to exclude his son from his will, the Court considered the nature of their relationship and the impact of the deceased’s physical and emotional abuse on the plaintiff’s emotional state and his current financial need. This assessment was balanced against the financial need of other beneficiaries in deciding the quantum of provision to be allocated among the parties.



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