We each have the freedom to leave our assets to whomever we choose when we pass away. However, there is a moral obligation imposed on us by the law to make adequate provision in our Wills for certain people in our lives such as our spouse or domestic partner.
In Victoria, if a spouse or domestic partner feel that they have not been adequately provided for under the Will they may bring a claim for further provision from the estate for their proper maintenance and support.
This was considered in the Victorian case of Wilden v Meller [2023] VSC 119.
Summary of facts
Annette (deceased) died on 4 September 2019. She was survived by her husband, David. They had been married for 25 years. David and the deceased did not have any children.
Throughout their marriage, David and the deceased shared household expenses and duties equally. David was the full-time carer to the deceased for the last three years of her life.
At the time of her death, the deceased and David had been living in a property in Ivanhoe East (the property) that was owned solely by the deceased.
The property was the deceased’s family home which she inherited from her late mother’s estate in 1981. The deceased’s brother received little or nothing from their mother’s estate.
The deceased final Will dated 15 August 2017 provided David with a life interest in the property, with the ability to instruct the trustee to sell the property and purchase an alternative property with the sale proceeds. David was also given access to a repair fund of $50,000.
Upon David’s death the deceased’s estate (which included the property or the alternative property) was to be divided into four equal shares, with three shares to the deceased’s three nephews and the remaining share split equally between two charities, United Israel Appeal and Jewish National Fund.
On 23 September 2021, David issued proceedings for further provision from the deceased’s estate. David argued that the deceased’s Will failed to make adequate provision for his proper maintenance and support.
David submitted that he contributed to the deceased’s welfare and to the care and maintenance of the property throughout their 25-year marriage.
David was 74 years old. His only income was a fortnightly age pension of $660 and a monthly New Zealand pension of $640 per month. He had $5000 in savings and had no superannuation.
David was seeking sufficient funds from the estate to enable him to purchase a home outright and amongst other things sufficient funds to supplement his current income. David was seeking an amount of $1.5 million, which would leave approximately $500,000 to be distributed to the deceased’s nephews and charities.
Court’s consideration
The Court accepted that the deceased owed a moral duty to make adequate provision for David’s proper maintenance and support. There was also no dispute that the Will failed to make adequate provision for David and that there was sufficient capacity in the estate to make further provision for David.
The question for the Court was whether the moral duty owed by the deceased to David required her to give him an absolute interest in the property, along with a lump sum payment of cash, or whether making an order in those terms went beyond what is required to fulfil the deceased’s moral duty and would amount to an interference of her testamentary intentions.
The Court acknowledged that it was clear the deceased wanted to provide David with secure accommodation but also acknowledged that it was clear that the deceased wanted the property to revert to her family namely her nephews.
The deceased’s Will provided David with secure accommodation for his life, however there were no funds available to supplement David’s limited financial resources. It was the Court’s view that the deceased had the capacity to do so and there are ‘no real competing demands upon the estate’.
Decision
The Court held that the deceased’s Will failed to provide the necessary flexibility to meet David’s needs over time, and therefore made a “Crisp Order”. The Crisp Order gave David a portable life interest in the property which would allow him to use the value of the property to secure appropriate accommodation (such as an accommodation bond at a retirement village) and to meet his ongoing maintenance needs.
The Court also ordered that David receive an extra $100,000 as a nest egg.
Key takeaways
A Crisp Order met the needs of the spouse and also preserved the deceased’s original intention of the property passing to the intended beneficiaries.
The case demonstrates how important it is to consider your spouse or partner’s future needs when drafting a Will as this could minimise the potential claim brought against your estate. Hunt & Hunt’s experienced Wills & Estates lawyers can assist you drafting your Will and also advise you if you wish to bring a claim or defend a claim against an estate.
With Seasonal Clerk Jack Watson.
