Ex-husband prevented from double-dipping in his former wife’s estate
By Deborah Kliger, Lawyer, MST Lawyers
Under the Wills Act 1997 the Supreme Court is authorised to make a will on behalf of a person who lacks mental capacity to make a valid will or amend an existing will. These court-made wills are known as “statutory wills”.
In the recent Supreme Court case of Re Gillam  VSC 5 Justice McMillan granted orders for a statutory will to be made on behalf of an elderly woman, giving her estate to her children and grandchildren (including her step-daughter and step-grandchildren). The court upheld the statutory will in spite of a challenge made by the woman’s ex-husband who already received $1.73 million under a family law settlement with his former wife.
The case involved a woman (“Mrs G”) who was aged 92 years and suffered from dementia. Mrs G did not have capacity to make a valid will. She was not expected to live for much longer.
Mrs G had two children from her first marriage. Her first husband died in 1963. Thirteen years later she married her second husband (“the defendant”). She did not have any children with the defendant. After a marriage breakdown the defendant issued court proceedings for a family law settlement. In November 2015 Mrs G and the defendant reached a settlement, resulting in the defendant receiving 47% of their matrimonial assets valued at $1.73 million.
Mrs G failed to revise her will following the property settlement. Her last will (“the 2011 will”) provided for the defendant to receive one third of her residuary estate.
Mrs G’s son made an urgent court application under section 21 of the Wills Act 1997 seeking orders for the making of a statutory will on Mrs G’s behalf (“the proposed will”). The proposed will appointed Mrs G’s sons as executors and gifted a total of $270,000 to her step daughter, grandchildren and step-grandchildren. Under the proposed will, the remainder of Mrs G’s estate would be divided between her sons equally.
Relevantly, the proposed will did not make any provision for the defendant. The defendant resisted the statutory will application, seeking that the 2011 will be upheld.
Legal principles for making a statutory will
In order to authorise the making of a statutory will the court must be satisfied that (section 21B Wills Act 1997):
- The person does not have testamentary capacity (will-making capacity);
- The proposed will reflects what the person’s intentions would be likely to be (or might reasonably be expected to be) if he or she had testamentary capacity; and
- It is reasonable in the circumstances for the court to authorise the making of the will for that person.
Mrs G had made three wills prior to her dementia manifesting in 2012. Under those wills Mrs G did not leave the defendant anything even close to the generous sum he received under the financial settlement. Accordingly, Justice McMillian found that after the financial settlement with the defendant, Mrs G’s likely intentions would be to provide for her sons, step-daughter and grandchildren (including step-grandchildren).
Take home messages
A former spouse who has received a property settlement will generally be unable to claim a greater share of their estranged spouse’s estate.
The court may exercise discretion to make a statutory will for a person where the proposed will reflects what the person’s intentions would be likely to be (or reasonably expected to be) if he or she had capacity to make a will or amend an existing will.
Statutory will applications are becoming more common due to the ageing population. If someone close to you has lost capacity to make a will, applying for a statutory will to be made on their behalf will ensure that their will reflects their likely wishes.
If you wish to apply for a statutory will, or for more information on wills and estate planning, please contact our Wills & Estates team by email email@example.com or by telephone +61 8540 0200.