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Estranged Daughter Left Without Adequate Provision

Kemperman v Antonenas [2021] NSWSC 1555

Hallen J presiding



Facts:

  • Estate of Johanna Antonia Kemperman (died 2019, aged 88) – valued at $1,591,707

  • Claim by 3 adult children for a family provision order under Ch 3 Succession Act 2006 (NSW) (the Act) – Antonia (plaintiff), Mary and Cecelia (defendants)

  • Family Provision Order – maintenance, education, or advancement in life


Major issues:

Estranged Daughter Inadequately Provided for in Mother's Will
  • Character and conduct of the applicant, her relationship with the deceased, and the competing allegations concerning the causes of the state of that relationship

  • Allegation of violence by Plaintiff to explain the nature of the relationship with deceased

  • Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life


Plaintiff:

  • Antonia Regina Kemperman, aged 66.

  • Received unemployment benefits 1991-2002, subsequently received disability pension August 2002. No future earning capacity. On NDIS plan.

  • Lives in community housing, no partner, poor health – autoimmune disorders: neurological disorder, Sjogren’s syndrome.

  • Issue of maintenance for medical expenses (estimated $200,000), seeks provision to purchase a two-bedroom unit in the Marsfield area and provision to further assist her with the contingencies of life.

  • No evidence of contribution (financial or otherwise) to the estate or welfare of the deceased.

  • Antonia was not being maintained, either wholly, or partly, by the deceased, before the deceased’s death.


Estrangement:

  • Letter attached to Will (clause 6) written by deceased’s husband: “I have left only a bequest of $50,000 to my daughter ANTONIA REGINA KEMPERMAN to express my extreme disappointment in Antonia as my daughter, for her lack of care and understanding throughout her life towards both my late husband and myself.”

  • Mary and Cecilia stated Antonia had had little contact with the deceased for the last 50 years of the deceased's life. During that time, there were significant periods of estrangement, spanning decades, at a time.


Family issues:

  • Plaintiff claimed victim of violence from both her father and from the deceased; that she was physically frightened of the deceased; that she was physically punished, regularly, for small infractions of the rules; she was also subjected to psychological and emotional abuse. She also went to police and claimed father raped her, later denied.

  • Antonia didn’t tell anyone, including two sisters, aunt (who she claimed witnessed violence) or psychologists.

  • Claimed she attempted to reconcile with parents but was turned away.

  • Sisters unaware of violence – only made aware of violence until received Antonia’s family provision claim.


Judgment:

  • Under Will, Antonia to receive $50,000 under the Will and the deceased’s violin.

  • Counsel submitted Antonia should receive $225,000 (quarter of value of the real estate) to fund medical bills, accommodation, future care expenses.

  • Two sisters competing claims, however neither gave evidence of any pressing financial need.

  • The estate, whilst not particularly large, is of sufficient size to allow further provision to be made for Antonia, whilst not substantially depleting the provision to be made to the other beneficiaries.

  • Lump sum awarded to Antonia: 15% of the estate (one-quarter of value of parent’s property in Lisarow), equating to $170,000.



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