A woman who saw her mother once in nearly 30 years has succeeded in gaining a $372,000 share of her estate after she was cut from the will.
The Family Court found the woman’s mother, Anna Johnson*, had failed in her moral duty to her daughter, Jane Johnson*, by excluding her from the family.
Anna died in 2021 and left Jane, who was one of three adult children, nothing. Jane then challenged the will under the Family Protection Act.
After delving into the family’s fraught history, details of which were contained in evidence from social services through the years, the court awarded Jane three-sevenths of the residuary estate, which in July 2023 was a little over $870,000 after all the gifts and claims were paid out.
In the court’s decision, publicly released earlier this month, Judge Noel Walsh said Anna’s decision to exclude her daughter as a beneficiary was neither wise nor just, but “based on a misconstrued and flawed perception of historic events”.
He said despite Jane’s behaviour, described at times as “miscreant” throughout her youth and early adulthood, her mother’s failure to recognise her as a member of the family was immoral.
Jane’s siblings, as the executors and trustees of the estate, conceded early on that there was a support claim but did not agree to an award of more than 10%.
Their appeal to the High Court was dismissed in October this year, meaning the Family Court’s decision of November last year was upheld entirely.
Family struggles
Jane was made a State Ward when she was 15, and according to the evidence, suffered the emotional effects of the tension that existed between her parents and which flowed into the household.
The evidence also revealed that Jane’s mother struggled with challenges of her own, including having grown up not knowing who her parents were.
The will was updated in 2018, and stated Jane was to be excluded “from any share of my estate on the grounds of her appalling and violent behaviour towards me and my late husband”.
Anna was advised by lawyers at the time against the exclusions and the possibility they would be challenged.
Jane’s children later filed proceedings for provision out of the estate, and in January 2023, an agreement was reached where they each received $50,000, which was the same as other grandchildren had received.
Jane’s lawyer, Stephen McCarthy KC, told NZME it was difficult for many in these situations to reconcile the harm caused by being excluded.
“I don’t think anyone realises how the past continues to affect those people left behind.
“They can’t get their heads around why it’s so unfair.”
McCarthy said it was important that children, including adult children, had ways to deal with the death of a parent with whom the relationship was “emotionally untidy”.
He said fighting it out legally often led to even worse relationships among surviving family members.
The pathway to estrangement
Judge Walsh said despite Jane’s “miscreant behaviour” when she was a teenager at home and school, he found her mother was primarily responsible for causing the estrangement.
He said the relationship began to unravel when Jane was only 5 or 6 years old, and the estrangement continued beyond her teens into her adulthood.
Judge Walsh said it was made worse by some “serious incidents” involving Jane’s misconduct towards her mother.
The opinion of a series of experts, including an education psychologist who interviewed Jane several times and also her parents found there had been “many instances of physical expressions of anger, serious division in authority and inappropriate disciplinary measures”.
When Anna died, Jane gave a lengthy eulogy described by her brother as “a speech of hatred”.
He said it added a lot of stress to an already stressful day.
“The eulogy was not one of burying the hatchet, forgiveness, or even acknowledgement of an estranged relationship, but an attack and multiple repeats for her dislike of her mother and sister,” he said in his evidence.
Judge Walsh said it was relevant to include the eulogy in full in the court’s decision.
In it, Jane said her mother “loved to hate me. And I hated to love her but I did”.
Jane was allegedly abused while in foster care and was then refused permission by her parents to live with an aunt and uncle who had offered to take her in.
By the time she was in her mid-teens, she was working part-time in a menial job, fell pregnant but had a miscarriage which was when her father and sister asked her to come back home but she declined.
She was again denied permission to live with a particular aunt of whom she was very fond.
Judge Walsh noted that despite the difficulties, Jane had maintained “a warm and loving relationship” with her father before he died in 2008.
In reaching his decision, Judge Walsh relied on the opinion of a series of experts plus case law and his own experience in the social science of parental effectiveness.
“Drawing all of the threads of this case together, I find, unequivocally, that Anna’s reasons for excluding Jane were not valid.”
He said the quantum of the award factored in the scale of Anna’s breach and the extent to which she was responsible for the estrangement.
Judge Walsh ordered the residual estate be divided into sevenths, with three-sevenths going to Jane and two-sevenths to each of the residuary beneficiaries.
The decision also recognised that Jane’s two siblings had already received gifts of $140,000 each from their mother before she died.
*Names have been redacted and replaced according to statutory rules around reporting on the Family Court.
