Estate Disputes – Claims by Second Spouses
Challenges to estates by second spouses or de facto partners is a rapidly growing area of estate litigation.
It is difficult to balance the competing claims of the second spouse and the children of the first marriage. Care needs to be taken in the estate planning process to seek to avoid or limit an estate dispute and the cost and personal anguish that goes with it.
Everyone has different circumstances so each case depends on its own facts. Generally the strength of a claim by a second spouse will depend upon the length of the relationship, the financial positions of the various parties and the strength of competing claims, usually from the children of the first marriage. The Court has traditionally held that the spouse must have a roof over their head, an adequate nest egg and a source of income.
Two recent Supreme Court cases illustrate these principles.
- Anslow v Journeaux and Anor –  VSC 250 (23 June 2009)
This was a claim by a de facto wife of some 35 years who nursed the deceased for the last 7 years of his life.
The estate was valued at $1,644,000. In his Will the deceased left $200,000 to his de facto and the balance equally to three adult children from his first marriage. The children also assumed control of a family trust with $450,000 in assets.
The Court increased the legacy to the spouse from $200,000 to $800,000.
- Panozzo v Worland  VSC 2006 (25 June 2009)
This was a claim by a widow of an 8 year second marriage
The estate was valued at $820,000. In the Will the widow was left a property worth $140,000 and the balance went to four adult children from a first marriage.
The Court ordered that the widow receive the property gifted in the Will and further provision of $175,000 with the result that she received 40% of the estate.
Author: Paul Watkins