In Paradisis v Kekatos (2016) NSWSC 220, the deceased in his Will left to his wife of 28 years a “life interest” in the matrimonial home, and the rest of his estate was left to his three children from previous marriages. His widow made a “family provision claim”, applying to the court for greater provision out of the estate.
The court regarded the Will’s provision for the widow as inadequate because if she moved out of the matrimonial home for any reason (eg, to live in an aged care facility) she would be left with nothing.
The court observed that whilst the provision for the wife should be increased, recognition should be given, as far as is possible, to the wishes clearly expressed by the testator – namely that his widow be looked after in her lifetime and that his children should have the property after her death.
The court balanced out the needs of the widow and the testator’s wishes as best it could by making a “Crisp order” – so named after an earlier NSW case by the name of Crisp. The order in effect gave the widow a “portable life interest” so that her needs were protected if she needed to move out of the matrimonial home for health reasons.
The order made by the court was that the widow was entitled to require the executor of the will to sell the home and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use or occupation, or providing accommodation for the plaintiff in a retirement village or accommodation providing hospitalisation and nursing care.
The judge placed a monetary cap of $700,000 on the widow’s interest in the sale proceeds. Any balance proceeds would go to the children. The widow was also awarded a legacy of $150,000 to act as a buffer for any unforeseen expenses. Her existing assets were only worth $73,000.
The rest of the estate, worth about $250,000, could be distributed to the three children immediately. The children would also benefit from any appreciation in the property’s value, or any replacement property’s value, beyond the $700,000 sum.
If you would like advice regarding a family provision claim, please telephone our Chris Kohler or Ross Moschella on 07 3221 8655.