On 29 July 2016 the Supreme Court of Victoria Court of Appeal delivered its judgment in a case called Edward Jones v Constance Smith (not the parties’ real names) which highights the importance of a parent making adequate provision for their children when making their Will.
It was a sad case in that the history was that the Respondent “Constance Smith” had been sexually abused by her father as a child, and although her mother “Abigail” knew of the abuse she didn’t leave her husband or remove Constance from exposure to her abusive father. To make matters worse once Constance grew up and had a child of her own she discovered that her father was also sexually abusing her child. Constance acted to make sure that her son never had any further contact with her father. When Constance’s son grew older he recalled the abuse and reported it to the Police. When Constance criticised her mother for not going to the Police about her and her grandson’s abuse Abigail told her that she was trying to protect her and her brother Edward’s inheritance and that she, Constance, would get an equal share with her brother when Abigail died. However once Abigail dies it was discovered that she had changed her WIll and had left more of her estate to her son Edward than to her daughter Constance, apparently as punishment for Constance’s son reporting his granfather’s sexual abuse of him to the Police.
The Court of Appeal upheld Constance’s right to have greater provison made for her in her late mother’s Will saying:
“For the reasons which follow, I would grant leave to appeal and would dismiss the appeal. Abigail ignored the moral obligation that she had to make adequate provision for the proper maintenance and support of Constance. In those circumstances, the Court’s jurisdiction to intervene and alter the manner in which Abigail had bequeathed her estate was enlivened.”
“As noted previously, the question of need is relative. So too is whether the provision that has been made is adequate for the proper maintenance and support of Constance. Those matters were to be assessed in light of all the circumstances having regard to the factors in s 91(4) (e) – (p). It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant’s assets and income are just two facts that go into the melting pot in determining whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant.
Leaving to one side any moral culpability on the part of Abigail, the fact is that Constance and her son were sexually abused. This has led to Constance having a significantly greater financial need than may otherwise have been the case. Abigail must be taken to have been aware of this need at the date of her death. A wise and just testator in the position of Abigail would have recognised this need and have made provision for it in her Will taking into account the size of the estate that she would bequeath and the other calls on it. Viewed in this way, one can see that Constance is not being compensated for some wrongdoing of Abigail or her husband but rather that the estate is responding by providing the necessary financial support that would be expected regardless of any involvement of Abigail. That there may have been some connection between the conduct of Abigail and the effect that the sexual abuse had on Constance only serves to heighten the moral obligation that the wise and just testator would be under to provide for a daughter such as Constance.
Instead of giving such support, in her last Will Abigail ignored her moral obligations and reduced the bequest that her daughter would have received under her earlier 1990 Will. That it was her intention to ignore her obligations was made clear by the reduced legacy and by cl 7 of the Will set out at  above which, as the judge observed only referred to Constance — not to either Edward or Phillip. In essence, as the judge observed, Abigail chose to punish Constance for supporting David in going to the police to report John.”
People sometimes complain that everyone should have the right to do as they wish in their Will and that the law should not interfere. If everyone who made a Will did so fairly and made proper provision for their spouse, children and other dependants this would be true. Unfortunately the case of Edward Jones v Constance Smith is a good example of the fact that not everyone makes their Will this way, and highlights the need for laws to ensure that family members do not have to suffer injustice and hardship when a spouse or parent dies.
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