Case study: Flanagan v Fisher (2021) NSWSC 598 (27 May 2021)

Here’s a 'fun' fact for you:

“Here in Australia, there is actually no real way of stopping your child, adopted or not, from disputing your will.“

And it sounds rather grim, considering that your will could potentially be your one last wish on earth, but legally, it’s true. Children, in many cases, have the right to attempt to claim their parent’s estate for their maintenance, education or advancement in life, even if explicitly excluded from the will!

This is known as a family provision claim, and provisions can become sticky situations when the claimant’s relationship with the deceased has irretrievably broken down, or is otherwise estranged.

But, just because it can be disputed, doesn’t mean it will succeed. When does the court allow for a child’s claim for provision, and when do they honor the will of the deceased?

The case of Flanagan v Fisher (2021) depicts a vicious duel between parent and child, and is a curious example that exposes some interesting truths about Wills and Estates.

Background

In 1978, Ronald and Wilma Flanagan, were given custody of Andrew and David, both Aboriginal infants, by the Children’s Court of NSW. They had intended to adopt Andrew, however, his birth mother withdrew her consent to the adoption. In about 1991, Ronald and Wilma sadly separated and in the same year, Andrew’s surname officially changed to Flanagan. In 1993, the couple made their separation official by attaining a divorce in 1993.

The Will

Ronald executed a Will on the 22^nd of May 2017, leaving his whole estate to the RSPCA, an animal welfare organisation. Ronald was stringent with his Will, ordering that his executor ‘vigorously oppose any proceedings’ his sons make to attain his estate. Ronald’s will explicitly stated that that neither of his sons had any contact with him for years, and specifically avoided Ronald’s attempt at forming a meaningful relationship.

Unfortunately, Ronald died in 2019, leaving an Estate valued at about $570,000 to be given to the RSPCA as stated in his Will.

Andrew Seeks Provision From Father’s Estate

After his father’s death, Andrew filed a claim for family provision, seeking $285,000 (half of the Estate Ronald left). The Estate submitted an amount of $80,000 should be deemed by the court to be adequate provision to Andrew.

A family provision is an application made to a Court for an order that greater provision be made for the applicant out of the assets of a deceased's estate.

By law, Andrew, being a claimant, had to provide notice of the court case to all other persons who may be entitled to bring a claim themselves, including, David. However, attempts were made to locate David, to give him notice of Andrew’s proceedings, to which there was no response. Notably, the RSPCA did not file any evidence and did not take part in Andrew's claim for provision either.

Other Evidence

To further solidify Ronald’s intentions with his estate, Franklin, a friend of Ronald, provided evidence to the court; “Ronald rarely spoke of his adopted children, other than to say ‘they never tried to contact me’, ‘they have never been in touch with me’, and ‘I’m going to cut them out of my Will’” Franklin said. Franklin spoke further about the deceased’s regular involvement with the RSPCA, which seemed to stem from Franklin’s discussions about animals he assisted there whilst volunteering for the RSPCA. In early 2017, Ronald spoke to Franklin about his Will stating;

“I have decided to give everything to the RSPCA in my Will because animals don’t have anyone to look after them.”

Moral obligations to make adequate provision VS freedom of testamentary wishes

The court must always undertake a balancing exercise before interfering with testamentary wishes that a deceased has recorded formally in a Will, as to how they want their bounty distributed after death, as well as any additional evidence of their intentions or reasons for doing so that may have been provided.

The court assessed that Andrew had needs, he was living with his mother Wilma (who was also an eligible person to bring a claim against Ronald’s Estate for provision), their house required some repairs, and Andrew had a mortgage of about $163,000.

Provision awarded

Regardless of the lack of evidence in regards to the relationship and the fault of any estrangement, the court was satisfied that Ronald had failed to make adequate provision for Andrew in his Will and went on to make an order that Andrew receive provision from the Estate of $160,000. Such a decision did not grossly interfere with the majority of the deceased’s Estate being bequeathed to the RSPCA.

Who Paid The Court & Legal Costs?

Interestingly, the Estate made a Calderbank offer to Andrew that he receives $170,000 from the Estate, and additionally, that Andrew’s costs be paid from the Estate. Andrew turned down this offer, resulting in the court ordering that Andrew pay $30,000 of the estates costs in defending his claim. This resulted in Andrew having to pay from his $160,000 provision. Andrew’s costs were to be paid by the Estate.

A Calderbank offer is an offer of settlement made by one party to another in an attempt to resolve the dispute.

Conclusions

Although Andrew was not a “child” of Ronald, the court made its decision as if Andrew was Ronald’s biological son.

This case presents a conflict of interests surrounding Ronald’s proposed estate desires. It was clear that Ronald did not want his estate going to his adopted children due to the lack of a committed relationship. He explicitly spoke with his friend, Franklin, and his executor that he did not want his sons involved in his will. The RSPCA was also left without the estate or any financial gain from Ronald, leaving his one dying wish shattered. However, the court ruled in Andrew’s favor providing him with a partial stake of the estate.

So, do you agree with the court’s decision?

*Disclaimer：This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*