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A common complaint heard about Wills is “What’s the point in having a Will if someone can just challenge it anyway?”  Also frequently heard is the comment “What do I care, I’ll be dead.  Let them fight over it.”

The Queensland District Court has recently stepped in to demonstrate how the laws relating to “challenging” a Will can actually prevent an unjust outcome.

Imagine you are married to someone for 23 years.  For various reasons in those 23 years, your relationship endures a brief separation (of three weeks in total), and during that time your spouse changes your matrimonial home from being joint tenants (i.e. automatically passes to the survivor) to tenants in common (i.e. passes via each parties’ Wills).  Then unfortunately that spouse doesn’t get around to changing their Will again and their share of the matrimonial home goes to your step-child.

This was the situation that Sally Tommarra from Queensland found herself in recently.

Sadly, her husband David died on 3 May 2018 without updating his Will. Sally was left out of David’s Will and one of his sons from a previous marriage was to receive his interest in the property.

At a practical level, this meant that Sally would be a co-owner of property with her step-son.  She would have to either pay him rent to occupy his share of the property (assuming they could reach an agreement) or, as a worst case scenario, the step-son could appoint a statutory trustee to force the sale of the property and leave Sally homeless.

As a spouse, if you have been left out of a Will, it is important to understand that although each case is determined on its facts, you are entitled to a proper level of maintenance. But what is proper maintenance? Proper maintenance requires total consideration of your position in life, including age, status, relationship with the deceased, financial circumstances, the environment to which you are accustomed and mobility.

Importantly, financial need is relative. That is, you do not have to demonstrate you are destitute to show you have financial need in these types of claims.

Whilst a court cannot re-write a Will of the deceased, it does have the discretion to make provision for you (as it sees fit). Where you are a spouse, the law is clear that ordinarily the needs of a widow are given primacy.

David’s estate was only valued at approximately $93,940 after a number of other items were removed by the Executor (which had minimal value).

For Sally, the Court took into consideration the contributions which Sally had made in the marriage, not only just  financially but also the assistance which she had provided to David after the reconciliation. Sally had provided a range of domestic duties such as cooking, cleaning, ensuring he took his medication, driving him to and from medical appointments and bathing him over a long period of time.  Essentially, Sally was David’s primary carer until he passed away.

After consideration of Sally’s circumstances, the Court awarded her David’s half interest in the property (which in this case was the majority of the estate).

No doubt this decision would draw ire from many a disgruntled stepchild.  But in a situation where you have someone who has been married for 23 years, contributed financially and in other ways towards a matrimonial home and also provided primary care to a dying spouse, should they really be left in a positon where they are essentially left without a roof over their head?

The costs of this decision would have been significant, and certainly depleted the value of the Estate.

Lawyers are often criticised for acting in such matters and you often hear comments like “Lawyers are the only winners” when it comes to Estate Litigation.

However, where you have two parties who refuse to reach an agreement, then sometimes litigation is unavoidable – preparation before you die is the key.

Unfortunately we are seeing more and more matters where a deceased’s spouse has been inadequately provided for in the deceased’s Will. Often people find it difficult to strike a balance between a second spouse and children from a former relationship. But there are strategies available to deal with the “blended family” situation to ensure that the parties can live as harmoniously as possible once you are gone and not to mention avoiding costly litigation.

Alternatively, if your spouse has recently passed away and you have been left out of their Will, then please contact our Wills and Estates team for a confidential discussion today. It is critical you seek advice as soon as possible as strict time limits apply.

This article was written by Ainsley O’Keefe, Associate – Private Clients | Wills and Estates. 

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Challenging a Will – can there ever be a happily ever after?

05 July 2019
ainsley o'keefe

A common complaint heard about Wills is “What’s the point in having a Will if someone can just challenge it anyway?”  Also frequently heard is the comment “What do I care, I’ll be dead.  Let them fight over it.”

The Queensland District Court has recently stepped in to demonstrate how the laws relating to “challenging” a Will can actually prevent an unjust outcome.

Imagine you are married to someone for 23 years.  For various reasons in those 23 years, your relationship endures a brief separation (of three weeks in total), and during that time your spouse changes your matrimonial home from being joint tenants (i.e. automatically passes to the survivor) to tenants in common (i.e. passes via each parties’ Wills).  Then unfortunately that spouse doesn’t get around to changing their Will again and their share of the matrimonial home goes to your step-child.

This was the situation that Sally Tommarra from Queensland found herself in recently.

Sadly, her husband David died on 3 May 2018 without updating his Will. Sally was left out of David’s Will and one of his sons from a previous marriage was to receive his interest in the property.

At a practical level, this meant that Sally would be a co-owner of property with her step-son.  She would have to either pay him rent to occupy his share of the property (assuming they could reach an agreement) or, as a worst case scenario, the step-son could appoint a statutory trustee to force the sale of the property and leave Sally homeless.

As a spouse, if you have been left out of a Will, it is important to understand that although each case is determined on its facts, you are entitled to a proper level of maintenance. But what is proper maintenance? Proper maintenance requires total consideration of your position in life, including age, status, relationship with the deceased, financial circumstances, the environment to which you are accustomed and mobility.

Importantly, financial need is relative. That is, you do not have to demonstrate you are destitute to show you have financial need in these types of claims.

Whilst a court cannot re-write a Will of the deceased, it does have the discretion to make provision for you (as it sees fit). Where you are a spouse, the law is clear that ordinarily the needs of a widow are given primacy.

David’s estate was only valued at approximately $93,940 after a number of other items were removed by the Executor (which had minimal value).

For Sally, the Court took into consideration the contributions which Sally had made in the marriage, not only just  financially but also the assistance which she had provided to David after the reconciliation. Sally had provided a range of domestic duties such as cooking, cleaning, ensuring he took his medication, driving him to and from medical appointments and bathing him over a long period of time.  Essentially, Sally was David’s primary carer until he passed away.

After consideration of Sally’s circumstances, the Court awarded her David’s half interest in the property (which in this case was the majority of the estate).

No doubt this decision would draw ire from many a disgruntled stepchild.  But in a situation where you have someone who has been married for 23 years, contributed financially and in other ways towards a matrimonial home and also provided primary care to a dying spouse, should they really be left in a positon where they are essentially left without a roof over their head?

The costs of this decision would have been significant, and certainly depleted the value of the Estate.

Lawyers are often criticised for acting in such matters and you often hear comments like “Lawyers are the only winners” when it comes to Estate Litigation.

However, where you have two parties who refuse to reach an agreement, then sometimes litigation is unavoidable – preparation before you die is the key.

Unfortunately we are seeing more and more matters where a deceased’s spouse has been inadequately provided for in the deceased’s Will. Often people find it difficult to strike a balance between a second spouse and children from a former relationship. But there are strategies available to deal with the “blended family” situation to ensure that the parties can live as harmoniously as possible once you are gone and not to mention avoiding costly litigation.

Alternatively, if your spouse has recently passed away and you have been left out of their Will, then please contact our Wills and Estates team for a confidential discussion today. It is critical you seek advice as soon as possible as strict time limits apply.

This article was written by Ainsley O’Keefe, Associate – Private Clients | Wills and Estates.