Make adequate provision for your spouse otherwise, the Court will do it for you. That’s the message we are being given from the Courts, and it’s a concern commonly faced by our clients. What do you do if you think you have been unfairly left out of a Will or left with inadequate provision?
It’s an issue faced by not only spouses or partners but also by children, siblings and, in some cases, grandchildren.
Does a Will really matter anyway?
While there is a notion that a person should be afforded the freedom to decide whom they want to leave their assets when they die (called ‘testamentary freedom’), this is balanced by Family Provisions legislation which requires that a person must make proper and adequate provision for those for whom the community would expect such provision to be made, such as your family.
This is not a question of fairness or equality, but a moral duty to provide for the maintenance, education and advancement of “eligible people”. Eligible people typically include your spouse, partner, children and other dependants.
If you fail to make adequate provision for an eligible person in your Will, the Court may intervene and make adjustments in order to provide this adequate provision.
This is an area becoming more complex, particularly in second marriages. What is the appropriate balance between providing for a second spouse and any children of your first marriage?
What can a widow expect to receive from an estate?
The Courts have recently considered this issue in the matter of Steinmetz v Shannon (2019) NSWCA 114. In this matter, the deceased had an estate of approximately $6.8million and left his wife an annuity payment of $52,000 per year for her lifetime, with the balance of the estate left to his children.
The Court held that the deceased failed to have sufficient regard to his obligations to his wife of 28 years and held that the annuity was insufficient and that it was not an appropriate form of provision in any event.
The Court had regard to factors such as the size of the estate, the care the widow had provided the deceased and the future needs of the widow and ordered that the widow receive a legacy of $1.75m in lieu of the annuity provided in the Will.
In doing so, the Court of Appeal noted that it’s not the role of the Court to worry whether there would be a perception by society that a Will is hardly worth the paper it is written on. Still, its role is simply to interpret and apply the legislation.
It’s clear that while you are free to make a Will as you see fit if your Will is challenged, the Court will step in to decide what your obligations are to your family and amend your Will accordingly. If you have been left out of a Will or inadequately provided for, it is crucial that you seek expert legal advice.
Contact Chamberlains for a free first consultation with one of our estate litigation experts to discuss your legal rights.
Call 02 6188 3600, email firstname.lastname@example.org or visit chamberlains.com.au
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