Wife left out of Will: court dismisses family provision claim in Victoria
A wife of 18 years, who became her husband’s primary carer in his later years, was left nothing under his Will. A claim was brought by the wife challenging the Will, and seeking provision be made to her from the estate. The executor defended the claim. The result? The claim was dismissed.
Initial reactions might be one of surprise, head scratching or questioning the fairness of the outcome. However, the devil is in the detail, and this case is a good reminder that financial need is a core requirement for a successful Will challenge.
In the recent case of Wielicki v Millar, the court summarily dismissed the wife’s claim for further provision, despite finding the husband has a moral obligation to provide for her. The summary dismissal process is a step that can be taken before a proceeding gets to trial, where a case can be dismissed at an earlier stage if a court finds it had no real prospects of success.
Key takeaways
This case is a good reminder that:
- financial need is a critical requirement in a claim for further provision;
- a strong moral claim alone is not enough; and
- the court will not rewrite a Will simply because the outcome appears unfair.
Background
The key facts were:
- The deceased was survived by his wife and his daughter from a previous relationship.
- The estate had a net value of around $1.5 million, which passed to a testamentary trust with the daughter as the main beneficiary.
- The deceased had ongoing health issues throughout their marriage, which began in 2006. The wife regularly took time off work to care for the deceased, significantly reducing her work hours in the final year of his life, which resulted in a reduction to her income.
- The wife, a medical practitioner, had assets in excess of $6 million, superannuation, rental income of $40,000 pa and an earning potential in excess of $330,000 pa.
What must you prove in a family provision claim in Victoria?
To succeed in a claim for further provision under s 91(2) of the Administration and Probate Act 1958 (Vic)(Act):
- the person must be an eligible person (which a wife satisfies);
- at the time of death, the deceased had a moral duty to provide for the person’s proper maintenance and support; and
- the distribution of the estate fails to make adequate provision for the person’s proper maintenance and support.
When determining the amount of provision to me made, if any, a Court under s 91(4) of the Act must consider the degree to which:
- at the time of death, the deceased had a moral duty to provide for the person; and
- the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the person.
If the court then decides to make an order, it may also consider factors such as the relationship between the deceased and the claimant, the size and nature of the estate, and the claimant’s financial resources and earning capacity.
Did the wife demonstrate financial need?
The wife’s position was that she had need based on:
- her relationship with the deceased;
- the care she provided for the deceased over his years of illness; and
- the financial and professional sacrifices she made to care for the deceased
The daughter’s position when defending the claim was that the wife’s claim should fail, as she could not show any financial or other need.
The court’s decision
The court held that while the wife had demonstrated a strong moral claim, she had not been able to demonstrate need. In other words, the wife had not been able to demonstrate that she was unable to provide for her own proper maintenance and support.
Importantly, the court also noted that it does not have power to rewrite a Will to conform with concepts of fairness or just compensation to reward meritorious conduct of a claimant.
If you would like advice about contesting a Will, defending a family provision claim or ensuring your estate reflect your intentions and minimises the risk of dispute, please get in touch with our Private Clients Team.
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