Second Marriages & Challenging Wills

Many second marriage partners successfully contest wills. The usual scenario involves a couple who have remarried later in life after their first spouse has died. One or both may have children from their first marriage and very often no children from the second relationship. When one of the partners dies greater provision is very often made in the will for the deceased children and somewhat lesser provision is made for the surviving spouse.

In such circumstances the court must determine whether what further provision, if any, ought to be made. Such a determination involves consideration of all the circumstances of the case including the length of the relationship, the financial situation of the estate and that of the claimant. The court will need to consider the competing merits and financial situation of the named beneficiaries, which are often the children of the first marriage, and that of the applicant which is usually the surviving spouse.

Such a claim was made by a 76 -year-old widow. Her husband had been previously thrice previously married. He had 4 children from his first two marriages. The estate was valued at approximately $520,000. The deceased made a will leaving his 76 -year-old widow a life estate in the matrimonial home and other benefits which would provide the widow and income of some $300 dollars per week. In addition the widow had personal savings of approximately $200,000. The court ordered that whilst the will adequately provided for a roof over the widow’s head, and adequate income for her remaining lifetime the will failed to provide for other contingencies in life including deterioration in the widow’s health and the associated costs. An additional sum of $50,000 was ordered to be paid. The court was mindful not to award such a large sum as would inevitably pass on to the surviving spouse’s estate.

Generally speaking the courts do not regard a life tenancy as adequate provision for a spouse and this decision may be limited to circumstances of such cases. If a person wishes to provide for his or her spouse by way of a life tenancy, then it is important that the terms of the life tenancy and be set out in some detail including permitting the beneficiary of the life tenancy the ability to obtain alternate premises. In a well drafted will a life tenancy provision may withstand challenge inappropriate circumstances.

*(published Inner Western Courier)