Housing provision leads to estate dispute

Date: Sep 18, 2014

The provisions imposed by a recently deceased NSW man in his will have been overturned by the New South Wales Supreme Court, following an estate dispute.

In his will, the man left his main assets, in particular a house which formed the bulk of his estate, in a trust for his two sons from a previous marriage. In the mean time, his will allowed for his new wife to occupy the house and to use its contents as she saw fit, for as long as she needed the property.

However, there was one condition imposed upon this provision - the wife's right to occupy the property would be revoked if she remarried or entered into a de facto partnership with another person.

Following the man's death in September 2012, his widow challenged the will, arguing that this provision was unfair and did not provide adequate support for her as a widow.

The court agreed, with the judge deciding that the deceased's will did not offer adequate support for the widow, despite her continuing to work part time. In particular, the fact that the will did provide an allowance for accommodation suggested that the will was intended to provide for the woman's material interests.

This consideration was enough for the judge to rule in favour of the plaintiff. She was entitled to a legacy payment of $300,000, from an estate worth slightly over three-quarters of a million dollars, in order to purchase her own home.

If this sum was not enough, the judge suggested that the widow fund the additional purchase costs from her own savings.

The two sons of the deceased were then entitled to split the remaining estate between them, once the trust that the will established had run its course.

For others looking to challenge a will, this case highlights an important consideration. In this case, the judge's verdict hinged largely on the ability of the widow to provide for herself. The ruling focused heavily on her own assets and weekly income, with the plaintiff needing to prove that these costs were insufficient to sustain her should she be forced to leave the property. 

Anyone in a similar position will have to be sure that they prepared and have strong grounds to challenge the conditions contained within a will.

If you want to be sure that your will is drafted appropriately, or wish to challenge a will, make sure you contact a wills and estates lawyer