A CURRENT SPOUSE IS ALWAYS ELIGIBLE TO MAKE A CLAIM FOR BETTER PROVISION

Writing a will can be very complicated when you are part of a blended family. You usually wish to provide for your current spouse and also for children of previous relationships.

Sometimes will makers want to leave a substantial part of their bounty to their children but they do need to be aware that it is always wise to ensure that the current spouse has sufficient provision. If this is not the case, a spouse is undeniably eligible to proceed to the courts for more.

Among the most common and certainly the most bitter family provision cases are those between a widow and the adult children of the deceased from a previous relationship. STEINMETZ v SHANNON [2019] NSWCA provides a case in point. The deceased had a substantial estate of $6.8 million and he left his widow of 28 years with an annual stipend of $52,000 and the rest went to the children. The NSWCA found that the widow had made very significant contributions to the relationship for many years and also that she had legitimate expectations of living in a similar style to which she had been living for 28 years. The court awarded her $1.75M.

Willmakers do have freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes.