Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Contesting Wills: Surviving spouses are at the head of the pecking order!


Lucy McPherson, Special Counsel for Estate Litigation at Attwood Marshall Lawyers, reports from our Melbourne office on why a surviving spouse or long-term de facto partner will generally be successful in seeking further provision from their deceased partners’ estates, looking at two recent cases from the Victorian Supreme Court.


Above all other people eligible to contest a Will, spouses are usually looked on favourably when they claim their deceased partner did not leave them enough to live on.

In fact, the expectation that a spouse has a “moral duty” to provide for their surviving partner after their death was established in a 1985 case known as Luciano v Rosenblum.

The case ruled that if a spouse has the assets to do so, they should ensure their Will leaves enough to their surviving partner so that the partner has secure accommodation, enough income to continue living a life they are accustomed to, and access to funds in the event of unforeseen circumstances. Another common issue is leaving a ‘life tenancy’ in the matrimonial home to the surviving spouse but failing to provide sufficient income or financial support (or flexibility to sell the home and ‘downsize’ etc).

If a deceased person is found to have failed in that duty, then the courts can and will step in.

Only certain categories of people are eligible to apply to the Court for a family provision order. A spouse is an eligible applicant. In the eyes of the law, a spouse refers to a husband or wife, de facto partner, or civil partner.

Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:

(a) whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and

(b) if so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).

As the Court determines this two-stage test, it takes into account the financial and material circumstances of the applicant, as well as the nature of their relationship with the deceased, the financial and material circumstances of competing claimants, any provision already received (such as by way of a payment from a superannuation fund) and the moral obligation the deceased owed to the parties involved in the dispute.

A judge will use their discretion but is also bound by law to tread carefully so that the wishes of the deceased are still being respected. Sometimes, those wishes are very clear. Other times, testimonial and evidence is needed to cobble them together.

Two recent cases heard in the Supreme Court of Victoria grappled with similar claims from a surviving partner.

While the decisions were very case-specific, they had a string of similarities – loving relationships that were decades long, no significant competing claims, and a surviving spouse or de facto partner that realised on the death of their loved one that they weren’t left enough in the Will to support themselves.

The two cases are excellent examples of how a court grapples with a spousal claim contesting the terms of a Will.

Case 1 – A duty to provide

In Walters v Perton [2023] VSC 37, Lynne Walters claimed that her late partner had not left her adequate provision in his Will.

Lynne went to court in 2017 after Donald Warring, her partner of more than 20 years, had died unexpectedly at the age of 80. His daughter Jane Perton had been appointed executor of his estate.

In his Will, Don left instructions for Jane to make sure Lynne could remain living in the house they shared together on a rent-free basis for six months after his death, after which time the house should be sold and Lynne be given $200,000 from the proceeds as well as $10,000 for relocation costs.

The pair had met in 1996 and lived together in a domestic relationship for more than 30 years up until Don’s death.

Lynne testified that she had been financially dependent on Don for over 20 years, as he had not wanted her to work – instead telling her that her job was to look after him.

In the ruling, handed down by the Supreme Court of Victoria on 9 February 2023, the judge found that Lynne had contributed as a domestic partner, hostess and carer for Don, which had improved his welfare and helped him build up his estate.

Don had run a telecommunications business since 1979. The judge pointed out that while Don controlled the business, Lynne had agreed to move with Don from New Zealand, where they had lived in the early years of their relationship, to Melbourne – allowing him to be far more involved in the business and reap the financial rewards.

Taking all of this into account, the judge ruled that Don’s provision in the Will was “not an adequate amount for the proper maintenance and support of Lynne.”

It did “not adequately provide a roof over her head,” given that she had to remain in Melbourne to care for her two grandchildren, who were living with her on alternate weeks. Their father (her son from a previous relationship) had been living with Lynne and contributing to rent and house maintenance when he died unexpectedly in September 2022.

“If the sum allowed were applied to accommodation, there would be no allowance for contingencies or a nest egg, leaving Lynne entirely dependent upon social welfare entitlements,” the ruling said.

Importantly, the judge found that Don’s duty to Lynne did not extend to her son and the two grandchildren, who had been living with them at the time of his death. The judge acknowledged that both Lynne and Don acted as grandparents to the children, but ultimately sided with Don’s daughter Jane that Don was not legally obliged to provide for their accommodation, even had his intention in life been to do so.

Case 2 – A portable life interest

In Wilden v Meller [2023] VSC 119,  the deceased’s wish for the main asset to eventually pass to someone else in her family, but still provide for her partner while he was alive, was challenged.

Upon his wife’s death, David Wilden had been given a life interest in the property where he had lived with his late wife of 25 years, with the ability to instruct the trustee to sell the house and buy another with the proceeds. He was also given access to a repair fund of $50,000. His wife, Annette Meller, had been given the house when her mother died in 1981.

Annette Meller’s Will stated that when David died, the estate (whether the old property or an alternative newer one) was to be divided into four equal shares, with three shares going to Annette’s three nephews and the last quarter split into two for her chosen charities, United Israel Appeal and Jewish National Fund.

David had argued that in the absence of any competing needs, the court could be more generous when determining how much he needed for his proper maintenance and support. Annette’s adult nephews had not asserted any financial need for the assets and Annette did not have any moral obligation to provide for them or the charities in her Will.

Around 2016, Annette’s general health and cognition started to decline, and David assumed the role of her full-time carer with little if any assistance from others.

The pair had no children and had not been married before they met.

The judge ruled that Annette’s Will had failed to provide the necessary flexibility to meet David’s needs over time, and so a “Crisp Order” was appropriate.

A Crisp Order can allow for the maintenance and support of a surviving spouse, while also preserving the estate for the remaining beneficiaries.

In making his ruling, the judge considered how David had contributed to the household throughout their marriage – adding his own income to their joint bank accounts and maintaining the upkeep of the house on top of his care for Annette in her later life.

The Crisp Order gave David a portable life interest in the property. He also received an extra $100,000 as a nest egg. The judge said that the order would give David greater flexibility as his needs changed over time, and if he chose to sell the house, any profit could be used to supplement his income.

It was the defendant beneficiaries who had suggested a Crisp Order. They fought against transferring the bulk of the estate to David absolutely, and the judge agreed that doing so could have amounted to fundamentally changing the architecture of the Will and “excessive interference with her clear testamentary intentions”.

The judge said it was clear that Annette wanted the property to ultimately revert to her family of origin – perhaps because she, not her brother, had inherited the house from her mother due to her mental health issues at a young age.

Attwood Marshall Lawyers – Leading experts in Estate Litigation and Succession Law

When someone makes a family provision application, emotions are generally running high, and many family issues can emerge. These types of legal matters can be extremely complex, and it is important to understand the options available to you and the likelihood of your claim being successful before taking action.

Strict time limits apply to lodging family provision claims, so it’s important to find the right lawyer who can guide you through this process and reduce conflict so that you can achieve your desired result and move on with your life in the quickest and most efficient way.

Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams with senior lawyers who practice exclusively in this area. Our lawyers have the knowledge and skills to act for people in any jurisdiction in Australia, understanding how the legislation differs between each state and territory. We have offices in all capital cities on the eastern seaboard, including the Gold Coast, and northern NSW, and act in all Australian state and territory jurisdictions.

We can talk you through the legal tests that could be applied to your case, whether you are a beneficiary seeking more provision or an executor defending a Will. We offer a free initial 30-minute phone consultation to discuss your case.

If you need advice or would like to find out more about Attwood Marshall Lawyers Estate Litigation services, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email or free call 1800 621 071 at any time.

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Lucy McPherson

Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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