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Will clause leads to widow challenge

Small clauses in wills can cause major problems for families after a death as the actions and achievements of family members can contradict what is spelled out.

However, it is important to remember that these clauses can be contested in court and although difficult, some cases are won. This is exactly the situation in a recent case at the New South Wales Supreme Court.

A man with children from a previous marriage made a will indicating the provisions that would be made to both his new wife and his sons.

These conditions included that they could remain living in the house that they shared and all property inside was transferred to them for an undefined period of time.

In the husband’s will, however, there was a clause that said the right to the house and property would be revoked if his widow remarried or began a de facto relationship. In this situation, it would be passed onto the executor of the will to manage on behalf of his two sons and the widow would not have any right to the property’s ownership.

Court documents reveal that if his widow entered a new relationship, the property would be placed in a trust for the sons and there would be support provided to the youngest son until he reached 18-years-old or completed year 12.

When this was revealed, the widow decided to contest the will in the NSW Supreme Court. She claimed in Court that the will didn’t provide her with proper maintenance and that it was unfair.

She challenged the will under section 59 of the Succession Act 2006 (NSW) and this was upheld by the Judge.

The widow said that if she entered into a new relationship, her current financial situation would not be able to support her. With the clause in the will stating that her rights are removed if this was the case, this meant there weren’t sufficient provisions given to her.

Settlement in this case included providing the widow with $300,000 in order to purchase a new property to live at. In addition to this, the two sons receive the remaining share of the entire estate between them.

What is the Succession Act?

The Succession Act covers situations where the will hasn’t provided family members with provision for proper maintenance, education or life advancement.

In family provision claims, it is suggested to get in contact with a contesting wills lawyer who can advise you of the process.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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