COURT DECISION UPHOLDS WILL

In the case of Sung v Malaxos (2015) NSWSC 186, the major asset in the deceased’s estate was his home at Lilyfield near Sydney Harbour, worth approximately $1.35 million.  In his Will, the deceased, aged 83 when he died, directed that the property be sold and that the sale proceeds be apportioned one-third to his de facto wife Ms Sung (then aged 64) and two-thirds to his daughter aged 51.

The widow applied to the court for greater provision from the estate.

The de facto relationship lasted for up to 27 years, but during that period the deceased and Ms Sung did not share their finances in any way.  Further, each took their vacations separately except on two occasions.

At the time of the hearing, Ms Sung was in full employment earning $95,000 per year, and she owned assets worth about $555,000 net.  By comparison, the deceased’s daughter and her husband each earnt less than the income tax threshold, and their combined assets were worth about $160,000.

The court was not persuaded by the widow’s principal factual contention that she did not wish to leave the Lilyfield home.  The judge emphasised that it is not the role of the court to ride roughshod over the testator’s intentions, concluding that the manner in which the deceased divided his estate was a considered one and soundly based.  The widow was in reasonable health, she could work for at least a few more years, and she would be able to live a comfortable and fulfilling life after the Lilyfield property was sold.

The judge, in dismissing her claim, said that the widow would “need to live a more modest existence.  This is a reality for many widows, let alone persons such as the Plaintiff, whose relationship with the testator was more equivocal and uncertain, despite its longevity, than that of a conventional wife.”