Husband pursues family provision claim against wife’s estate

Published 26 Jan 2018

Family provision claims enable eligible individuals to seek a larger share of a loved one’s estate if they feel their financial needs have not been met in the deceased’s will.

Current and former spouses are the most successful type of claimant in these cases. A 2015 study from the University of Queensland and several other academic institutions found that 83 per cent of spousal plaintiffs receive a favourable verdict.

These figures were put to the test in a recent Supreme Court case that saw the husband of a deceased woman pursue further provisions from his late wife’s estate.

Why did the husband launch a family provision claim?

The plaintiff decided to file an inheritance dispute after discovering he had been left nothing in his wife’s will.

Instead, the deceased left the entirety of her assets, which had a total value of approximately $700,000, to her granddaughter. The plaintiff was not the biological grandfather of the beneficiary, as his wife had children from a previous marriage.

The couple shared a property in Cronulla, New South Wales, as tenants in common, with the one-half share of the home comprising the bulk of the deceased’s estate.

While the plaintiff and his wife remained married and living together until the latter’s death, the dysfunctional nature of their relationship was a key issue in the family provision claim.

Family provision claim factors

The strength of the plaintiff’s marriage to the deceased was contested in court.

His wife’s daughter, who was also the executor for the estate, claimed the pair slept in separate beds and that the plaintiff was homosexual, which allegedly disgusted the deceased.

The pair supposedly lived in squalor, with the deceased’s daughter stating that the plaintiff was a hoarder who failed to take adequate care of her mother when her health began to fail.

The deceased had written a number of wills over the years, all of which confirmed her intention to bequeath her share of the Cronulla property to her daughter or granddaughter.

Given the evidence, Justice Guy Parker ruled that the husband should not receive further provisions from the will, making the plaintiff one of the unfortunate 17 per cent of spouses whose claims are unsuccessful.

Why did the judge reject family provision claim?

The judge said the deceased’s testamentary dispositions in favour of her granddaughter were “quite understandable in the circumstances”.

According to Justice Parker, the 50 per cent share of the Cronulla property was financially fair to the plaintiff, as he would have enough money from the sale of the home to purchase a new place to live and still have $200,000.

“The deceased’s testamentary dispositions cannot be said to be outside the reasonable range of community expectations, and, accordingly, I am not satisfied that the deceased failed to make a ‘proper’ level of provision for [her husband],” he explained.

Whether or not the plaintiff appeals this decision is yet to be seen. However, if you would like to discuss pursuing a family provision claim, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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