A parent’s continuing obligation to financially support their adult child: when does it end? 

By Natalie Lewis, Solicitor, and Paul Watkins, Principal

The recent family provision case of Joss v Joss [2020] VSC 424 illustrates that, in certain circumstances, a parent’s sustained financial support of an adult child may found an order for further provision under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) even if the parent purports to exclude that child from their Will because of the child’s objectionable behaviour towards the parent. 

Facts of the case

In Joss v Joss, the deceased died survived by his wife and two adult children, including the applicant who applied for further provision from the estate.  Under his Will, the deceased left his $14.5 million estate to his wife with provision that should she predecease him, $1 million was to be left to the applicant as an annuity and the balance held on various trusts for the deceased’s son and grandchildren. 

The deceased also left a letter addressed to the applicant setting out the reasons why he did not make further provision for her.  The letter documented the history of the applicant’s manipulative and hurtful conduct towards her parents. 

The applicant was born male but identified as female.  For many years she suffered gender dysphoria and resented her parents for not embracing her chosen identity.   Over the course of her adult life, she engaged in conduct which she knew offended her parents’ personal and religious views, including:

• Involving the family’s friends and business associates in her personal conflict with her parents; and
• Working in Germany knowing the emotional pain it caused her father who was a Holocaust survivor.

At various times, her parents bailed her out of legal and financial crises, including paying for divorce and immigration proceedings in the US and for her return flight from Tajikistan where she moved so that she could join a militant group in Afghanistan, much to the chagrin of her parents.   

The applicant became ‘affixed’ with the idea that it was her parents’ responsibility to pay for her gender reassignment surgery, which they refused to accept.  At the height of the family conflict, she planned to kill her father with a cross-bow.  The attack was foiled and she was hospitalised and received psychiatric treatment which her parents paid for.  Her parents ensured she was not charged in relation to the incident.

Since 1999, the applicant did not work despite having a commerce degree and having previously worked in highly-paid positions.  Further, there were no significant impediments to her resuming work. She rented motel accommodation and had little if any physical contact with her parents. Yet her parents, through their company, continued to pay her a weekly income which was increased whenever she requested.  They also paid for all of her non-transgender reassignment medical expenses, provided her with a company car and paid $30,000 off her credit card debt.   

The relevant provisions of the Act

The matter went before Hollingworth J of the Supreme Court of Victoria.  The critical issues for determination were:

• Whether the deceased had a moral duty to provide for the applicant’s proper maintenance and support (s.91(2) of the Act), and if so;
• The amount of provision to be ordered taking into account the extent of the deceased’s moral duty to the applicant and the degree to which the applicant was not capable by reasonable means of adequately providing for her own proper maintenance and support; (s.91(4) of the Act).

In determining these issues, the court must take into account the terms of the deceased’s Will and any evidence of the reasons for the testamentary dispositions (s.91A(1) of the Act). Further, the Court may take into account the factors set out under s.91A(2) of the Act.  These include the relationship between the deceased and the applicant, the size of the estate, the needs and financial resources of the applicant, the competing claims of other beneficiaries and dependants to whom the deceased owed a moral duty, the extent to which the deceased has maintained and supported the applicant, and any conduct on the part of the deceased or the applicant potentially amplifying or diminishing the deceased’s moral duty. 

Did the deceased owe a moral duty to the applicant? 

Hollingworth J was not subtle in her reproach of the applicant’s conduct.  She was particularly critical of the fact that the applicant would have been able to save for the gender reassignment surgery herself, choosing instead to rely on and harass her parents.    

However, her Honour held that whilst the applicant’s conduct certainly reduced the extent of the deceased’s moral duty, it did not negate such duty.  She noted that ‘[c]ourts have long recognised 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.’ 

What was critical to finding the existence of a moral duty was the relationship of financial dependence the father created by giving into the applicant’s financial demands and allowing her to live comfortably on the weekly income and other allowances provided.  As a result, the applicant did not need to work. 

Her Honour also noted that given the applicant had not worked for over 20 years, she had no reasonable prospect of returning to a well-paid job.  Even if she could return to a non-skilled job, she would face difficulties given her advancing age and period of absence from the workforce.

Amount of the family provision order

Her Honour ordered $3.225 million of the deceased’s estate be paid to the applicant.    

She held that such order would not adversely affect the wife’s interests as she owned her home and received income from the family’s companies. 

The order was tailored to the applicant’s circumstances and the extent of the deceased’s moral duty to her.  It would enable the applicant to continue to receive a net weekly income of $1,600, adjusted by CPI, until she was 86, and to purchase her own property, if she so desired.  It would also enable her to undergo gender reassignment surgery which, her Honour accepted, was important in allowing her to move on and enjoy her life.   

In fixing the amount of the order, her Honour rejected the applicant’s claim that in addition to the $2.4 million to be allocated towards her income, she needed $2.5 million to purchase a luxurious townhouse in an expensive suburb.  Her Honour held that the deceased’s moral duty did not extend so far. She noted that the applicant had previously abandoned a unit in East St Kilda which her parents purchased for her in her name.  Further, she believed that the applicant’s extravagant claim was not needs based but was ‘inextricably’ linked to her desire to get back at her parents for having rejected her.  The role of the court in Part IV applications is clearly to provide for the proper maintenance and support of an eligible applicant; the court’s jurisdiction is not to be used ‘as a means of obtaining compensation, or assigning blame for past actions.’ 

If you have any questions about this article, please feel free to contact one of our Wills and Deceased Estates accredited specialists on (03) 8540 0200.