The deceased died in 2016 without leaving a Will. The deceased was survived by his estranged second wife, his ex-wife, and his two children, Thomas and William aged 19 and 16 respectively. The value of the deceased’s distributable estate was just over $430,000. At the time of his death, the deceased and his second wife had been separated for several years with the Court noting “There can be little doubt…the marriage had irretrievably broken down”. As the deceased died intestate (without leaving a Will) the deceased’s estate was distributed “not according to the wishes of the deceased as expressed in a Will, but according to a regime established by statute”. Pursuant to the rules of intestacy, the deceased’s estate passed to his second wife.
In an effort to seek to redress the perceived inadequacies of operation of the rules of intestacy in this case, a family provision claim was made by Thomas and the deceased’s father on behalf of William, for provision to be made for “the proper maintenance, education or advancement in life” of Thomas and William from the deceased’s estate. To determine this issue the Court was required to make “an assessment of the financial position of each of Thomas and William, respectively, the size and nature of the deceased’s estate, the relationship between each and the deceased, as well as the relationship of the deceased’s second wife and the deceased, as a person who has a legitimate claim upon his bounty”.
The Court acknowledged the deceased’s estate passed pursuant to the rules of intestacy to the deceased’s second wife. However the Court noted “bearing in mind the shortness of the marriage before she left the deceased (about 14 months); the fact that there is no evidence of any contribution made by her towards the acquisition, conservation and improvement of the estate of the deceased, or to his welfare; that it is not suggested that she contributed to the welfare of the family of the deceased; that nothing at all is known about her financial resources (including earning capacity) and financial needs or about any physical, intellectual or mental disability from which she might suffer; that she appears to have wished to have a complete break from the deceased, and has maintained that approach by not, apparently, wishing to participate in the proceedings; and despite the numerous efforts to involve her, I am satisfied that the Court should regard her as having virtually no competing claim on the bounty of the deceased…”.
In contrast, “judged by quantum, and looked at through the prism of Thomas’ and William’s financial and material circumstances, respectively, adequate provision for the proper maintenance or advancement in life of each could be seen as not having been made”. Accordingly the Court ordered the estate to pass to Thomas and William.
Much of the difficulty, delay and expense experienced by the parties in this case could have been avoided if the deceased had made a Will leaving his estate to his children. At Everingham Solomons, we have the expertise and experience to assist you to prepare a Will that suits your needs because Helping You is Our Business.
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