In the Estate of Owen Brown deceased (2016) VSC 258, under his Will the deceased left his second wife Gail a life interest in the home they lived in plus an annual income of approximately $25,000 from a $500,000 trust fund controlled by two children of his first marriage. The residue of the $1.7 million estate was left in equal shares to the seven adult children of his first marriage.
The widow Gail applied to the court seeking an order for greater provision from the estate.
Gail and the deceased had a close relationship for the last 13 years of his life. He encouraged her to leave her paid employment. She became self-employed as a counsellor, earning approximately $20,000 per annum. Her only remotely significant asset was $65,000 in superannuation. She received a widow’s pension and drew $1,500 per month on her super fund, which would run out within four years.
The seven children did not give evidence of any financial need on their part.
The court noted that the widow did not contribute financially to the estate, but the court also observed that it was conceded by the executors that the widow “made a contribution to the welfare of Mr Brown right up to his death and that this should be given significant weight.”
Observing that “the applicable test is of a wise and just testator, rather than a fond and foolish one” the court considered that the deceased had not made adequate provision for his widow. The court noted that whilst he had attempted to balance the needs between his first and second families, the Will did not provide his widow with a capacity to maintain herself independently and autonomously or to meet contingencies such as a need to enter nursing home accommodation.
The court ordered, in all the circumstances, that the widow be given $500,000 from the estate and that the home she and the deceased resided in (worth $480,000) be transferred to her. This left approximately $100,000 each for the seven children.