Do mutual Wills protect an estate against a family provision claim by a child or other claimant
In a recent decision by the New South Wales Supreme Court decision of Stanford v Stanford [2021] NSWSC 1469 the Court endorsed the almost impenetrable nature of Mutual Wills made by couples to blended families in the context of a family provision claim by an adult child on his deceased’s father’s estate.
The case involved a family provision claim by the adult son of the deceased and the deceased’s first wife on his late father’s estate against the deceased’s widow, the second wife of the deceased. The deceased and his second wife had made Mutual Wills leaving their entire estate to each other and then equally between the deceased’s two children and the wife’s two children.
The wife had a close and loving relationship with the deceased and was his long-term carer when the deceased was diagnosed with dementia. The deceased further made significant contributions to the purchase of property once held by the deceased before it was sold to fund his retirement home. The deceased’s son also a close relationship with the deceased. He alleged that the relationship had become more distant between himself and his father because the widow would not allow easy access to the deceased and would always be present when they were together.
The son sought family provision from the estate to allow him to purchase a property and gain financial security that was otherwise not possible from his employment income. The son did have the ability to pay rent regularly and was not in financial need. He argued that he should receive an early provision from his father’s estate to give him long term financial security. The widow was fully dependant on any monies coming in from the deceased estate.
There were Mutual Wills in place which bound the widow and her estate. She had given assurances that she had no intention of changing her will to cut the claimant out of her Will despite the proceedings for family provision by the adult son and that he would receive his share of the estate upon her death.
Justice Hallen found that there was no pressing financial need on the part of the claimant that would justify the Court altering what were the clear testamentary intentions of the deceased. He further found that the result of the Mutual Wills ensured that the claimant for family provision would receive his inheritance upon the wife’s death and in the context of the Mutual Wills and the close and loving relationship between the deceased and his widow, any order against the wife would cause disadvantage and hardship to her.
The decision did leave open the potential for a successful family provision claim by an adult child in circumstances where there is shown to be a pressing financial need by the claimant and where the assets are sufficient to make the family provision sought.
The decision highlights the importance of obtaining proper estate planning advice, and the use of Mutual Wills as a mechanism for protecting the interest of couples and their respective children, particularly in blended family circumstances.
Call the experienced lawyers at The Law Office of Conrad Curry to discuss your estate planning needs or the prospects of succeeding in your family provision claim. (02) 4050 0330. Or book an appointment online.
