Clauses in your will can lead to confusion later on

Date: Sep 08, 2014

A recent case at the New South Wales Supreme Court concerned division of the deceased's estate. The will made provisions for the deceased's widow and his children from a former marriage, however there were certain conditions made in the will.

For example, the will provided the right to live in the house they shared and use the contents for an undefined period. However, this right was to be revoked if the widow remarried or entered into a de facto relationship. Upkeep of the property fell to the executor, and the deceased's two adult sons. The widow did not have any right to ownership of the property. 

Once the widow no longer had the right to live in the property it would be put in a trust for accumulation for his two adult sons. The will also provided support for the youngest son until he reached the age of 18 or finished year 12. 

The widow, the plaintiff, claimed that the will did not provide for her proper maintenance. The court upheld this claim under section 59 of the Succession Act 2006 (NSW). 

The court ruling provided the plaintiff with a legacy of $300,000 in order to purchase an alternative property. The two adult sons received the remaining share of the estate, equally divided between the two of them. 

Section 59 of the Succession Act 2006 (NSW)

Section 59 of the Succession Act 2006 refers to when a family provision order can be made. The court is able to grant a family provision order to an eligible person if "adequate provision for the proper maintenance, education or advancement in life" has not been made.

In the above case the plaintiff did not have the means to financially support herself if she was no longer able to stay in the deceased's property. Due to the conditions imposed on her in the deceased's will it was decided that her proper maintenance was not provided for.

A 2013 practice note on family provisions at the NSW Supreme Court states that all family provision orders are required to undergo a thorough process before proceedings begin. This includes a first directions hearing, mediation and obtaining consent orders. 

If you wish to challenge a will or create an estate plan so that the important people in your life are provided for discuss your situation with a lawyer.