Wills and Estates: 10 September 2020
A recent Supreme Court case saw the daughter of a wealthy conservative Jewish businessman successfully suing his estate for $3.225 million, around a quarter of the $12.4 million estate, after the daughter was left out of the will.
The award was made despite the daughter having led a campaign to embarrass and harass her family and at one time plotting to kill her father with a crossbow in a public revenge. The case highlights the complex nature of 'family provision' claims and the often surprising outcomes.
Peter Joss was a very successful Melbourne industrialist and property developer, who emigrated to Australia in the 1940s from Czechoslovakia after surviving the holocaust. Mr Joss was survived by his wife Judith and two children, Ronald and Jessica. The Joss family maintained strong ties within the orthodox Jewish community and were devout, private and discreet.
Jessica was the youngest of two children. Jessica identifies as a transgender woman, who was born and raised as a male. Jessica grew up confused and isolated due to her gender identity issues. After eventually coming out to her family as transgender, Jessica claims her family refused to accept her identity as a woman.
Jessica became obsessed over her family's refusal to accept her and began causing public scenes to embarrass her parents, harassing her extended family and friends, and making threats and demands for money from her parents which she claimed was her "birthright. In particular, Jessica demanded funding for gender reassignment surgery.
Jessica's behaviour became increasingly irrational over the years. Jessica attempted to join the Northern Alliance, the Muslim military resistance fighters engaged in Afghanistan's civil war prior to the U.S. invasion. Jessica plotted to murder her father in a public setting as a form of revenge, which was only thwarted by Peter obtaining a restraining order. Jessica was at one time committed for mental health reasons, and while in the hospital she physically attacked her mother.
Jessica became estranged from her family for around 20 years before her father's death. Notwithstanding this, her father continued to support her with an income of $1,600 per week, purchased an apartment for her, and paid for her car including operating expenses. Jessica never worked, and essentially stalled her life while waiting for her family to pay for her operation.
In Victoria, as in all States and Territories, certain persons who are not adequately provided for from a deceased estate can make a claim to receive a greater share of the estate. The provision is designed to ensure a person is not left unable to support and maintain themselves. It is not designed to achieve equality amongst family members, or to redress grievances that the family member has. The court, in deciding whether or not to make an order, will take into account a variety of factors including:
The estate in this case was larger than most. The primary competing claim was from the widow of the deceased, who received the benefit of the deceased's trusts and companies and did not have any real financial need. On the other hand, Jessica had been actively maintained by the deceased her whole life, had not worked in many years, was 61 years of age, had a history of mental illness and no means of independently supporting herself.
While the court considered the extent to which Jessica's own actions and behaviour had contributed to her disadvantaged position, and that her at times deliberately malicious behaviour towards her family weighed against the deceased's moral duty to provide for her in his will, she nonetheless was entitled to significant provision from the deceased's estate.
The purpose of family provision (or testator's family maintenance) claims is often misunderstood. To a large extent, the claims are only concerned with elevating those family members who are financially disadvantaged to the point where they can maintain themselves. While a person making a will is often concerned about the closeness or quality of their relationships with their family members, and whether they share their moral and cultural values, these are not the overwhelming factors that the Court considers.
In this case, despite the animosity in the relationship, the deceased financially supported his daughter for most of her life. The daughter had relied on that support (some would say she was enabled by it) and would be greatly disadvantaged if the support ceased. This, together with the lack of financial need demonstrated by the widow, is likely the determining factor that swayed the Court's decision.
Most will-makers are concerned about their privacy. In this case, the daughter violated her family's privacy during their lives as a tactic to embarrass and offend them. As a result of these proceedings, the family's history has been played out in a courtroom and become a matter of public record. Details of the case made it to the pages of the Age and Herald Sun.
Further, the ongoing litigation which dragged on for three years (and could be subject to an appeal) has likely been incredibly stressful and damaging to the family.
The family, if properly advised, would have easily foreseen the daughter making these claims against her father's estate. A number of strategies would have potentially been available to the family that may have avoided these proceedings entirely.
If you need advice about a Wills & Estates claim, contact Aitken Partners on (03) 8600 6080.
 Joss v Joss  VSC 424 (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/424.html)
 'Woman overturns will to force parents to pay for reassignment surgery', The Age (8 August 2020) https://www.theage.com.au/national/victoria/woman-overturns-will-to-force-parents-to-pay-for-reassignment-surgery-20200808-p55jth.html
 'How woman won $3.2m from dad's will despite plot to kill', Herald Sun (10 August 2020) - https://www.heraldsun.com.au/truecrimeaustralia/police-courts/woman-wins-32m-from-fathers-will-despite-plot-to-kill/news-story/927a4fcfc421351b4c3e3591807571e5