In NSW, an ‘eligible person’ may contest a will by making an application under section 59 of the Succession Act 2006 (NSW) for provision (or further provision) from a deceased estate if the will of a deceased person did not provide them with adequate provision for their proper maintenance, education and advancement in life. 

Spouse receives alternative accommodation from small estate after 16-year marriage

The case of Clarke v Clarke & Anor [2022] NSWSC 1721 is interesting case involving a 16 year marriage, a small estate, and competing interests.

The spouse (aged 75) proved successful and obtained a family provision order allowing her to buy alternative accommodation.

The deceased in this case had left his estate to his wife and two children from a previous marriage as tenants in common in equal shares. The estate was small and the net distributable estate was only $443,000 after costs.

The widow commenced proceedings for further provision from the estate for alternative accommodation to replace the accommodation that she had shared with the deceased for 16 years, which was in effect the estate’s primary asset and therefore needed to be sold.

The Court was not persuaded that the widow should receive the property absolutely or all the proceeds of the sale of the property as the marriage was not for deceased with children being raised; it was a second marriage; the property had not been jointly acquired (but rather gifted to the deceased before their relationship commenced); and to do so would defeat the deceased’s testamentary wishes towards his children each of whom had a close and loving relationship with the deceased.

However, the Court found that the deceased’s Will did not make adequate provision for the widow as it left her, then aged 75 and well into retirement age, whose sole income was social security payments, without ‘proper’ accommodation after a 16-year marriage.

The nature of the family provision order made by the Court was unique in the case.

The Court ordered the widow to receive one third of the net proceeds of the sale of the property absolutely and in addition, the remaining two thirds of the balance of the net proceeds (comprising what was the children’s share) by was of a secured loan to enable her to purchase alternative accommodation in her own name. The term of the loan was for the widow’s life or until she sold the property that was acquired for her. The widow was to pay interest but the interest on the loan was to capitalise.

https://www.caselaw.nsw.gov.au/decision/18512c03bd11242a6de2b7ed

Spouse’s share increased from $100,000 to $500,000 after 17-year marriage

In the case of Ibrahim v Nasr [2021] NSWSC 1321 a widow obtained a family provision order for $500,000 in the context of a 17 year marriage.

Under the deceased’s 2015 Will, the widow was granted a 2-year life tenancy to the home that she and the deceased lived in for their entire 17-year marriage and, thereafter 10% of the net proceeds of the sale of the property was gifted to the widow and to each of the deceased’s nine children (the widow’s stepchildren).

The widow brought proceedings for further provision from the estate.

Front and centre in these proceedings was the conduct of several of the step-children towards the widow including allegations that she had stolen from and even attempted to murder the deceased, the installation of hidden cameras in the deceased’s bedroom to covertly record the widow’s care and treatment of the deceased, and what the Court described as “vile” Facebook posts made about the widow.

In considering whether the deceased’s 2015 Will did not make adequate provision for the widow, the Court found that the widow cared for the deceased in sickness as well as in health over their 17 year marriage (contrary to the step-children’s allegations); that the relationship amounted to a substantial financial dependency; and in applying Paton v Public Trustee (NSWSC, 8 December 1988, unreported) that “there is a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of a medium to long duration. Those basic necessities include a secure roof over the remaining spouse’s head and at least a small capital sum”.

The Court made a family provision order in favour of the widow for $500,000, being just over half of the net distributable estate after allowing for costs, to allow the spouse to improve her accommodation by renting or buying a very modest apartment in Sydney), repay a loan, acquire basic domestic assets, and allow provision for medical expenses.

https://www.caselaw.nsw.gov.au/decision/17c80e199c22335f1c8cf29a

Spouse’s claim on $5.4m estate unsuccessful because of her ‘relentless persecution’ of her husband

An example of a case where an ex-wife’s relentless persecution of her ex-husband including unproven sexual assault allegations, an AVO that was later dismissed, and threats including that she would “personally make what is left of [his] wretched life not worth living” was one of the factors that worked against her in a family provision claim.

The case of Lodin v Lodin [2017] NSWCA 327 involved a family provision claim by a former spouse on an estate worth $5.4m which the deceased had left to his (and the claimants) only child, an adult daughter.

Though the former spouse proved successful at first instance, having obtained an order for $750,000, her daughter (as administrator of the estate) successfully appealed the matter to the Court of Appeal.

Whilst satisfied that the former spouse was an ‘eligible person’, the Court was not satisfied that there ‘were factors which warranted the making of the application’ for the former spouse.

The Court found several factors counting against the former spouse’s claim.

First, that the marriage had effectively ended 25 years before the hearing; the relationship between the deceased and the former spouse lasted for less than 6 years; and the marriage itself lasted only 19 months.

Secondly, the parties had entered a financial settlement some 25 years earlier. The Court found that in the absence of evidence demonstrating a significant causal link between the deceased’s conduct towards the former spouse and her financial needs, the financial settlement retained its significance for the purposes of the family provision claim.

Further, that notwithstanding the former spouse demonstrating financial need, the Court was not satisfied that there was a causal link between the deceased’s conduct towards the former spouse and her financial needs and found that her financial needs were due to a combination of factors including her own decisions.

Lastly, the Court considered the respondent’s “relentless persecution” of the deceased to be a relevant factor in considering the former’s spouses’ claim.

The Court of Appeal overturned the decision of the Supreme Court and ordered the former spouse to pay the estate’s costs.

https://www.caselaw.nsw.gov.au/decision/5a2747f7e4b058596cbacbd2

Former spouse receives $150,000 from $1.3m estate due to unfavourable family law settlement 22 years earlier

The 1990s was the era of divorce settlements that favoured the husband. The prevalence of financial abuse and asset and income manipulation often led to spousal maintenance payments, child support payments, or divorce settlements that were so low they were effectively pointless.

Do you know a former spouse who received an unfavourable divorce settlement? If so, now may be their time to shine.

The case of Stockwell v Beaumont; O’Donnell v Beaumont [2019] NSWSC 1811 demonstrates how an unfavourable divorce settlement in the 1990s can give grounds for a former spouse to bring a family provision claim.

This case involved family provision claims by the deceased’s third spouse (Margaret O’Donnell) and the deceased’s second child, an adult daughter, on the deceased’s estate worth $1.3m which had been left to the deceased’s third and youngest daughter.

After satisfying the Court that she was an eligible person, as a former spouse, Ms O’Donnell also needed to show that there were ‘factors which warrant the making of the application’.

One of the factors the court took into account when considering this element, was the modest value of the divorce settlement that Ms O’Donnell had received on separation some 22 years earlier.

In finding that Mr O’Donnell only received about $30,000 in 1997, the Court found “this is likely to be considerably less than she would have received in a family law settlement” after 10 years of marriage.

The court found in favour of both claimants and ordered provision of $150,000 for the former spouse and $200,000 for the daughter.

https://www.caselaw.nsw.gov.au/decision/5df734d4e4b0c3247d71444a

Step-daughter’s claim on $1.2m estate unsuccessful because of weak relationship with deceased step-father

The recent Supreme Court of NSW decision of Plummer & Anor v Montgomery [2023] NSWSC 175 demonstrates the significance of the closeness of the relationship between a stepchild and step-parent in the context of family provision claims.

This case involved claims by two adult sisters (aged 65 and 61) on their deceased stepmother’s estate worth $1.21m.

After satisfying itself that each claimant was an ‘eligible person’ the Court considered whether there were factors which warrant the making of the application and on the basis that neither claimant had received anything from their father’s estate when he died several years earlier, the whole estate having passed to their stepmother’s estate the subject of the current claim, the Court found there were factors which warrant the making of the application.

However, in considering whether adequate provision has been made the court found at [264]:

“Importantly, this is not a case where there was a close relationship, or where she was brought up as a permanent member of the deceased’s family, or where she was ever a full-time member, as a child of the deceased’s family. The evidence does not support that she was supported by the deceased, to any significant extent, educationally or emotionally. There was not a relationship between each of the Plaintiffs and the deceased that “might be properly described as parent and child”.

Putting the relationship in perspective, the Court concluded by stating at [270]:

“Although there are cases in which the relationship of a step-parent and stepchild may develop into a relationship which gives rise to the making of provision, this is not such a case. Indeed, for over 15 years prior to the deceased’s death, there was really no relationship between either of Sharon or Michelle with the deceased. They rarely saw each other, and none of them made any real attempt to maintain any sort of relationship with the other.”

The stepchildren’s claims failed and each were ordered to pay the estate’s costs in defending the claims.

https://www.caselaw.nsw.gov.au/decision/1869f7fb6dba1509604ad9ae

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Want to learn more?

Read more about how to contest a will in NSW here.

Read more about the cost of contesting a will here.

Read more about how to gather evidence to support a wills contest here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.