The decision in Bouttell v Rapisarda (2014) NSWSC highlights the practical way in which the courts approach family provision claims.
The deceased left behind an estate worth approximately $ 600 000 including a house and a strata title unit. The deceased’s Will provided to his widow a right of residence in the house for as long as she chose, unless she re-married or entered a de facto relationship. Once the right of residence ended, under the Will the house would become part of the residuary estate. The residuary beneficiaries were the deceased’s children, two sons aged 20 and 18, from his previous marriage.
The deceased and his widow were in a relationship from 2001 to 2009. They separated in 2009, but their relationship resumed in March 2011. They soon decided to marry. Subsequently, in November 2011 the deceased was diagnosed with terminal cancer. They married in April 2012, and the deceased died in September 2012.
At the time of the hearing, the widow was almost 51, and her life expectancy was another 38 years. In her job at NRMA she was earning $ 31 000 per annum. Her assets comprised $ 202 000 in a bank account, superannuation worth about $ 73 000, a car, and some personal possessions.
The 20 year old son was a tertiary student, and the 18 year old planned to become a tertiary student.
The court observed that although the marriage between the deceased and his widow was only of short duration, the relationship preceding it was of a much longer duration.
Justice McDougall found that the deceased’s Will failed to make adequate provision for his widow’s proper maintenance and support. His Honour noted that she did not have an ownership interest in the house and that she would be dependent on others (who may be unwilling) for its upkeep, concluding that there would not be sufficient certainty and flexibility to enable her to live in comfort and security for the rest of her life.
The widow hoped that the result of her claim would be that she could buy, without a mortgage, a house of her own. The court held that this was appropriate in principle, but the court did not think it unreasonable to expect that she may have to spend some of her own savings in order to achieve that goal.
The court concluded that adequate provision for the widow would be achieved by a legacy for her of $ 300 000 in lieu of the right of residence under the Will, and at least one of the estate’s two properties would need to be sold in order to achieve this.