The daughter of a millionaire conservative businessman successfully claimed $3.225 million from her late father’s estate after a Victorian Supreme Court Judge ruled that her father owed her a “moral duty” despite a foiled plot by the daughter to kill her father with a crossbow at the family’s synagogue because her family refused to accept that she was transgender.
The case highlights the complexities and often surprising outcomes of ‘family provision claims’ in Australia as well as the importance of obtaining proper legal advice when doing your estate planning.
The Joss Family
Peter Joss was a wealthy and successful businessman who had moved to Australia from Czechoslovakia in the 1940s after surviving the Holocaust. He married Judith and they had two children together, namely, Ronald and Jessica (previously known as Jeffrey).
The Joss’ were a private and conservative orthodox Jewish family and when Peter died at the age of 93, he left his entire $12.4 million estate to his wife, Judith, who survived him. Jessica and her brother would only inherit from their father’s estate if their mother predeceased their father.
Jessica identifies as transgender and began identifying as a female when she was around 10 years old. Jessica’s gender identity issues resulted in her feeling isolated, depressed and confused growing up. After eventually coming out to her family as transgender, Jessica claims her family rejected her identity as a woman and refused to help her pay for gender reassignment surgery.
However, Jessica strongly believed that it was her parents’ obligation to pay for the surgery. This belief turned into an obsession which as Justice Hollingworth noted had “become the obsession of her life for the past two decades”.[1]
Family disharmony and revenge
Jessica was apparently “a troubled child, who was prone to explosions of violent anger (including assaulting a teacher).”[2] This dysfunctional and troubling behaviour continued into adulthood and Jessica’s frustration at her parent’s refusal to pay for the gender reassignment surgery manifested over time into increasingly more aggressive and vocal public acts intended to embarrass and hurt her parents.
Justice Hollingworth commented that “[Jessica] wanted to embarrass her family, publicly and privately, to punish them for not accepting that she was transgender, and also to try to force them into paying what she regarded as her entitlement.”[3]
In one instance, Jessica stood up at her parents’ orthodox synagogue and announced to the congregation that she was transgender knowing that this would humiliate her conservative and private Jewish parents.
Unfortunately, Jessica’s frustration escalated to the point where she made an elaborate plan to kill her father in the family synagogue using a crossbow that she had purchased. Luckily her neighbour caught wind of her plot to kill her father the following day and immediately contacted her family.
The case notes that a “Dr Shields recorded that Jessica’s intention was to enact the plan in such a way as to be ‘maximally humiliating’ to Jessica’s family”.[4]
Jessica’s claim
Jessica sought provision from the estate on the basis that her father did not make adequate provision for her in his Will. At the start of the proceedings, Jessica sought 100% of the estate, but this reduced to a claim for around 30 to 45% of the estate.
The net value of the estate under the Will was about $12.4 million.
Jessica was successful in her claim and awarded the sum of $3.225 million by the Court.
So how did Jessica manage to make a successful family provision claim?
Jessica was around 57 years of age when her father died and financially dependent on her father as at the date of his death. At the time of her father’s death, Jessica had not worked for 20 years, had no savings, no superannuation and no substantial assets.
Importantly, Jessica’s father had continued to fully financially support Jessica throughout his life despite the dysfunctional family relationship.
Jessica was wholly maintained by her father and even after his death, her mother continued to financially support her.
Justice Hollingworth stated:
“Notwithstanding Jessica’s behaviour, including her plans to kill him, Peter continued to support her financially. The weekly allowance that he provided from 1999 onwards was generous enough that she did not need to go and look for work. If she ran up credit card debts, or needed additional financial help, he provided it. The only thing Peter was not prepared to pay for was the gender reassignment surgery which Jessica wanted. So even though she still had reasonable earning capacity after her discharge from hospital in 1999, Jessica chose not to seek employment for more than 20 years. By continuing to support Jessica for all those years, Peter allowed her to become financially dependent on him, and to lose much, if not all, of her capacity for employment. That is the most important consideration in my conclusion that Peter did owe a moral duty towards Jessica, notwithstanding her attitude and behaviour over the years.”[5]
Further, Justice Hollingworth reiterated that family conflict or dysfunction are commonplace in family relationships and that estrangement between Jessica and her father as well as Jessica’s character and conduct towards her father in the case did not remove the moral duty that the father had to provide for Jessica but only reduced the extent of the moral duty.[6]
Take away points
Family dynamics are an essential point to consider when preparing your Will and other estate planning documents. Family provision claims can be complex, and the likelihood of a claim being made against your estate or the likelihood of making a successful claim depends on the facts of each case.
Each Australian state and territory have slightly different laws relating to family provision claims which is why it is important to discuss the plan for your Will and other estate planning documents with a lawyer specialised in Estate planning.
It is not possible to contract out of the Family Provision Act 1972 (WA) but there are various ways to better protect your assets.
If there is conflict in your family or you are estranged from an immediate family member such as a child or parent, then we strongly recommend you book an appointment with one of our Wills and Estates lawyers at Lynn & Brown Lawyers to help you prepare your Will and other estate planning documents.
[1]Joss v Joss [2020] VSC 424 (89).
[2] Joss v Joss (158).
[3] Joss v Joss (166).
[4] Joss v Joss (107).
[5] Joss v Joss (167).
[6] Joss v Joss (168).
About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.
