Looking for an exotic read that traverses East St Kilda, L.A., London, Afghanistan and Malvern? Or researching the outer reaches of “disentitling conduct” in dysfunctional families for the purposes of Victoria’s testator family maintenance (TFM) regime?

Either way, take a look at Joss v Joss [2020] VSC 424 which was decided by Justice Elizabeth Hollingworth in the Supreme Court this month.

The deceased was an orthodox Jewish survivor of the Holocaust. He died aged 93 in 2017, leaving the entirety of his $12.4 million Australian estate to his wife of 61 years. The couple’s two children stood to inherit under Dad’s will if Mum predeceased him but as Mum survived Dad, they got nothing under Dad’s will.

One son apparently accepted this but his brother did not. That son – a 61 year-old now named “Jessica” (s/he has long been planning gender reassignment surgery) sued the estate under Part IV of the Administration and Probate Act claiming her father had a “moral obligation” to make adequate provision for her proper maintenance and support and had failed in that duty. Jessica initially claimed 100 per cent of the estate but whittled that claim back to between 30 and 45 per cent by the end of the trial.

What had the plaintiff done to deserve such munificence from her late father (and at the expense of the deceased’s widow, Jessica’a own mother)?

Here are just some of the highlights from Jessica’s resume:

• After being expelled twice from the same school Jessica received a commerce degree from Melbourne Uni. She then worked in banking and finance in Sydney and London for a few years.
• In 1989 Jessica briefly joined the US Marines but didn’t make it through boot camp.
• She then moved home to East St Kilda where the deceased bought her an apartment in her own name and employed her in the family business.
• Along the way, Jessica stole some of the deceased’s share certificates and bought herself a luxury car with the proceeds.
• In 1998 the deceased started paying Jessica an allowance of $500 per month. That allowance never stopped (even after the deceased’s death) and by the time of the trial had grown to $1600 per week (i.e. $83,000 annually tax-free) plus miscellaneous extra payments from time to time.
• In 1999 Jessica quit work at the family business and (on her own version) chose never to work again. She lived off her parents’ money thereafter.
• At about the same time, she abandoned the St Kilda apartment she’d been given to stand empty while she took off to Tajikistan hoping to fight in Afghanistan.
• She developed strong anti-Jewish, pro-Muslim views. She also attempted to get a job working with the Iranian government.
• She boasted to friends that she was joining Al Qaeda.
• She repeatedly demanded millions from her parents (as an “advance on her inheritance”) and threatened to kill herself if they refused.
• She repeatedly embarrassed her parents publicly and privately.
• She acquired a cross-bow and was arrested after threatening to kill the deceased with it at the family’s synagogue.
• She accepted a brand-new car from the deceased in 2014 and never saw him again before he died three years later.
• As at the date of trial (in Hollingworth J’s words): –
  • “Jessica’s life has essentially been on hold for 20 years, as she stubbornly waits for her parents to pay for the [gender reassignment] surgery that she would have been capable of saving for, and paying for, herself at various times during that period.”
  • “Jessica’s parents have furnished at least three previous homes for her over the years; she has either sold or abandoned all of the furniture.”
  • Jessica has “no superannuation, savings or substantial assets” and no dependents “except for an elderly cat”.

So did the deceased have a “moral duty” to make provision for Jessica in his will?

Too right, said Hollingworth J.

“By continuing to support Jessica for all those years, [the deceased] allowed her to become financially dependent on him, and to lose much, if not all, of her capacity for employment. This is the most important consideration in my conclusion that [the deceased] did owe a moral duty towards Jessica, notwithstanding her attitude and behaviour over the years.

….

“… I have determined that the sum of $3.225 million would constitute adequate provision for Jessica’s proper maintenance and support.”

Observations

Three thoughts occur to me.

First, like so many other TFM judgments, Joss contains some judicial platitudes about freedom of testation being “an important human right” but then illustrates that the limitations to that right can be very severe indeed.

Second, religious types might perceive in Joss an echo of the The Prodigal Son. They are wrong.

In the parable, the younger son received a large, early share of the family fortune and squandered it. He then saw the error of his ways and returned to the family fold to express regret and seek forgiveness. In Joss the younger sibling bypassed the family and went to court where expressing indignation rather than regret. And rather asking for forgiveness Jessica sought, among other things, the price of the hypothetical “impeccable” 2 or 3-bedroom house in Malvern or Armadale to which she aspired.

The only common thread between Joss v Joss and the Prodigal Son is that in both stories the older brothers must have come away dumbfounded. (The brothers might also have found themselves questioning the scriptural injunction: “The meek shall inherit the earth”.)

One final cheerful thought though. This type of case often prompts people to ask lawyers how they can be sure that a will won’t be contested after a testator dies. There is only one certain answer if you are a testator:  make sure you spend every last cent you have before you turn up your toes.