All Australian jurisdictions provide statutory rights for eligible persons to contest a Will on the basis that they have not been left what is considered adequate provision by the testator for their proper maintenance, education, and advancement in life.

In South Australia, an eligible person includes:

  • a spouse, former spouse or domestic partner;
  • a child of the deceased or a child of the deceased’s spouse or domestic partner if the child was being maintained by the deceased prior to his or her death;
  • a grandchild of the deceased;
  • a parent or sibling who can establish that they cared for or contributed to the maintenance of the deceased during his or her lifetime.

If a family provision claim is successful, the Court can order further provision from an estate in favour of the eligible applicant and make an appropriate adjustment. A range of factors are considered including the relationship the applicant had with the deceased, the financial circumstances of the applicant, the obligations or responsibilities the deceased had to the applicant, and the nature and size of the estate.

The moral duty to provide for a spouse

There is a general expectancy that testators have a moral duty to provide primarily for the proper maintenance of their spouse or de facto partner. The Courts have explained this as providing what is necessary for the spouse to enjoy accommodation to the standard to which he or she is accustomed and, to the extent possible and having regard to the size of the estate, a fund to meet unforeseen contingencies. This is particularly so where the marriage or relationship has been lengthy. Second marriage situations can sometimes be treated differently.

Family provision claims made by widows often involve a contest between the applicant and a child or children from the deceased’s former relationship. The applicant will generally apply for greater provision than what has already been provided in the Will based on his or her personal and financial circumstances, current financial position, and future needs. Sometimes the children of the previous relationship make their own claims for further provision from the estate.

The general expectation and primary position of the Courts that generally spouses should provide for each other may place a widow’s needs ahead of other interested parties in a family provision claim. However, all cases will be individually assessed in light of the relevant circumstances and balanced with the needs of the applicant and the competing needs of other entitled recipients. In doing so, the Court will also be conscious of the responsibility that a testator has towards his or her children.

Determining the sufficiency of proper maintenance

The Courts have explained the difficulties of determining the meaning of ‘proper maintenance’. In Re Harris [1936] SASR 497 it was considered to be ‘…more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering round the house or lurking in some outhouse in the back yard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail’.

Sometimes, widows are left a ‘right of residency’ in the testator’s property. This allows the widow to occupy the family home or other property of the deceased for his or her lifetime with the intention that the property will pass to one or more other remainder beneficiaries, such as the testator’s child or children from a former marriage, after the widow’s death.

A right of residency however may not always be practical and may be considered insufficient to meet the moral duty expected of the testator. The widow may subsequently, due to age or health, need to vacate the residence, being left vulnerable and without security of a home. If a right of residency is provided, it should if possible provide some flexibility to meet changed circumstances such as the need to downsize accommodation, enter into aged care etc.

The alternative approach of leaving the home to the widow may also be inappropriate – if the widow passes soon after the deceased, then the result may be a significant capital asset being inherited by the widow’s relatives, rather than the testator’s own children, contrary to the wishes of the testator.

In Luciano v Rosenblum (1985) 2NSWLR 65 the Court gave some guidance as to the expectation of a widow after the death of a spouse:

‘Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result…’

The relevant principles apply equally between husband’s and wives.

Conclusion

A testator generally owes a moral duty to provide for his or her spouse and, accordingly a spouse may have priority over other entitled beneficiaries or eligible claimants in a Will contest. That being said, each case is different and will turn on its own unique circumstances.

There are a range of factors a Court must consider when assessing the merits of a family provision claim. Your family circumstances should be assessed in light of these factors when preparing your Will and estate planning to minimise the potential of a Will contest when you die. There is still very much a need to have a will in place.

Strict time limits apply with respect to making a claim for family provision. If you or someone you know wants more information or needs help or advice in planning for potential challenges to your will or estate plan, please contact us on (08) 8344 6422 or email admin@donlanlawyers.com.