SHOULD I RE-MARRY/SHACK UP WITH MY NEW PARAMOUR?
This is a very knotty problem for an older person who has “stuff” and who has a new wo/man in their lives and is considering taking the relationship further. They want their property to eventually go to their children from a previous relationship, and not to the new partner (or eventually to the new partner’s children).
People who have decided to go ahead and get married or “shack-up” , to set up a blended family, try to deal with the inheritance problem by using “strategies” such as granting the partner a life tenancy, making a binding family agreement, creating mutual wills or testamentary trusts, and giving gifts to their children before death. These are more or less successful. A recent case: Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC may have added to the potential armoury.
In Kemeny v Schneider a second husband of 14 years made an unsuccessful application for better provision than that provided by his deceased wife. Judge Rees stated that, in her opinion, any entitlement must be justified by reference to the circumstances of the particular case.
The facts/circumstances were:
At the time of their marriage the couple had agreed to leave each’s assets to their respective children and they actually re-executed wills on their marriage to that effect.
Financial arrangements between the couple during their married life were strictly defined. Ms Kemeny insisted that the plaintiff pay ‘rent’ of $500 a week plus half of household expenses. Although the plaintiff suggested that they have a joint account for housekeeping, Ms Kemeny refused
Ms Kemeny was very insistent on maintaining separate finances and financial records.
They maintained separate bank accounts.
After his wife’s death Mr Schneider’s own resources were judged sufficient for his proper maintenance in his retirement.
Later in the marriage Ms Kemeny obtained legal advice as to how best to prepare her will given she was ‘on notice’ that her husband might challenge his provision. Having received that advice, Ms Kemeny adjusted the provision made in favour of him consistent with that advice (she left him her car, artworks and her superannuation (totalling some $103,000) together with a right to occupy her apartment for six months after her death, rent free). She left the rest of her estate to her two children in equal shares.
Judge Rees stated that where it can be seen that a capable willmaker has duly considered the claims on his/her estate, then respect should be given to that judgment.
In short: Judge Rees stated that surviving spouses do not have primacy over all other applicants regardless of circumstances, they must be entitled to primacy on the facts. The court will examine the facts in conjunction with considerations such as the length and quality of the relationship; the surviving spouse’s contribution to the relationship, health, earning capacity, age and prospects; the size of the estate and competing claims.
In this case “the provision may not have been generous but it was entirely commensurate with the tenor of their relationship and their dealings with each other since its inception”.