Over the years there has been an increase in individuals entering their second (or subsequent) marriage later in life. It is common for many of these individuals to enter into their marriage with children from a previous relationship. These situations can at times lead to a dispute over the parent’s assets when they die. Sometimes such disputes can result in a family provision claim, examples of which will be provided below.
Who gets What?
Bates v Cooke [2015] NSWCA 278
This case relates to a son that made a family provision claim against his mother’s estate, which had passed to his stepfather in accordance with a mirror will made in 2006. The mother’s estate had minimal value but had a substantial notional estate which included an interest in a Self-Managed Super Fund worth $1,050,000 and joint tenancies in two properties.
He claimed that the need was for him to be able to build up a suitable amount of superannuation for retirement, as he had been unable to because of previous bad investment decisions.
The primary judge held that because his need and financial position was attributable to his own bad investments, then community expectation would be for a competent adult to take responsibility for their own actions without seeking provision from a deceased’s estate. Some of the other factors the judge took into consideration included:
– The applicant had 21 years left of working life ahead of him.
– He was employed and of good health;
– He currently had $61,000 in superannuation;
– He had no dependents and owned his own home.
The appeal to the Court of Appeal was dismissed.
Thompson v Thompson [2015] VSC 706
This case related to a second wife of the deceased making a family provision against his estate. The wife and her late husband had commenced living together in 1979 and got married in 1987. They subsequently bought an apartment together in 1997 as tenants in common in equal shares.
The husband’s will (made in 1997) granted the second wife the contents of the home, his car and a life interest in his half of the apartment. The rest of the estate was given to his two children from his previous marriage.
The wife sought an absolute interest in the apartment. The Court took the following into consideration when making its decision:
– The relatively small size of the estate;
– Competing claims from the children of the husband; and
– The wishes of the husband.
The Court granted an extended portable life interest in the apartment (sometimes referred to as a Crisp order).
The above cases show a trend that the courts will essentially maintain the arrangements made by the blended couple despite challenges from the deceased’s children or spouse.
If you require any further information in relation to family provision claims, please contact our team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.
