Mainstream titles include Raising Boys, The No-Cry Sleep Solution or Where Do I Come From?

I haven't yet come across a clamour for parenting books authored by lawyers, barristers, or judges, but the recent case of Stone versus Stone [2016] NSWSC 605 has led to His Honour Brereton J restating the judicial approach what it means to be a parent.

First let's take a step back. Despite the general principle that one should be able to bequeath one's belongs as they wish in their will, the distribution of a deceased estate can be altered by the Supreme Court so that it runs contrary to the will.  

This is done by way of the succession act 2006 and in particular chapter three of that act which provides that a family provision order may be made by an eligible person if “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person”.

In the Stone versus Stone case Aston Stone had passed away on June 27, 2014 aged 83.  His will left all of his estate to his wife, Estelle Stone who had received probate and the proceeds of the estate.  The deceased had a daughter from his second marriage (which had ended in 1972 by which time the deceased was living with Estelle Stone to whom he was married in 1975 until his death) Bettina Stone.

As is set out in the judgment, at first the deceased and Bettina continued their close relationship, despite the fact that the deceased had divorced Bettina’s mother and had a new partner (and subsequently wife). The relationship was not a financial one however, and the deceased never made any maintenance payments, despite Bettina’s mother obtaining a judgment to that effect.

Bettina and the deceased grew further apart over time, so much so that although the defendant was admitted to an aged care facility in 2011, Bettina did not learn of this until February 2013.

Bettina suffers from chronic facial dermatitis, which has led to a range of anxiety disorders including agoraphobia, meaning it is very difficult for her to find employment and that she relied financially on her mother.

Brereton J acknowledged that the deceased's primary obligation was to Estelle as his wife, but also as the major contributor to his material position while alive.  His Honour, however, found that primary obligation did not extinguish any obligation to Bettina.

It His Honour’s extraction of the authorities regarding parenthood (and therefore the duties of the deceased to Bettina that are most interesting in this case).  

The duty of a parent to a child is described as a moral duty and as being “embedded in our value system and underpinned by the law”.  

The obligations don’t end just because the child has reached adulthood, as the adult children’s lives “have been largely moulded many year in the past and whose opportunities were, in some senses, restricted by that upbringing”.  

Also, an obligation to assist in childhood can’t be extinguished simply by avoiding it for a long time.

In terms of the financial obligations of parenthood some more interesting statements were set out including that generally  “the community does not expect a parent to look after his or her children for the rest of their lives and into retirement” (I hope my kids will read this one day), however if the child falls on hard times and there are assets available “the community may expect parents to provide a buffer against contingencies” and provide “something to assist in retirement where otherwise they would be left destitute”.

In this case the court found that Bettina was entitled to provision out of her father’s estate because she “never had the financial support from her father during childhood that every child is entitled to expect from her parents”.  This coupled with her medical and financial situation led to an order in her favour equating to roughly a third of her father's estate.

The court also found that the half of the property originally owned by the deceased, but transferred to Estelle in the distribution of the estate, was designated “notional estate”, meaning that it could be the subject of the family provision order.

So in bad news for all of you out there planning on following a Battle Hymn of the Tiger Mother style of parenting and those of you who plan on following through (usually joking) threat of cutting someone out of a will - you might do that in your will, but the court can overturn it at later date.

Michael Evans is a solicitor at Whiteley, Ironside and Shillington