Spouses challenging each other's estates (that is, when the music's over**)

Previous View posts have considered various aspects of the right for someone to challenge a deceased estate (often referred to as family provision or testator family maintenance applications).

Another important aspect of the issues in this regard is the ability of a (then current) life spouse to challenge an estate of the first of the couple to die.

In relatively modern times, the decision in Luciano v Rosenblum (1985) 2 NSWLR 65 was often quoted as summarising the position of the surviving spouse as follows:

'… as a broad general rule, and in the absence of special circumstances, the duty of a willmaker to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies'.

The later decision of Neale v Neale [2015] NSWCA 206 also confirmed generally the correctness of the above approach. However, in the context of a dispute between a second spouse and children of the first relationship of the willmaker, the court also confirmed that the 'rule' should be considered with the following qualifications:

1. The Luciano case involved only some of the estate passing to the spouse, whereas here the entire estate was in fact left to the second wife, and it was the adult children of the first relationship seeking further provision.
2. It is unhelpful, and sometimes misleading, to adopt the value laden language of a different age and culture (in this context, 1985 is a long time ago; as too the challenge mentioned by the court by 'deserving widows' as perceived by 'middle class morality' presented by Eliza Doolittle’s father in Bernard Shaw’s Pygmalion).
3. To describe a party as a 'deserving widow' is to express a conclusion which will reflect fact-specific findings; it is not to state a freestanding criterion.
4. Any references to the Luciano case confirming 'a broad general rule', qualified only by 'the absence of special circumstances', that cause the assumption of an independent standard, are inconsistent with the exercise of discretion required of the court by the legislation in this area.
5. Any such general rule would involve a conclusion reflecting only part of the statutory exercise imposed on the courts in this area.
6. That is, the court must consider a widow’s circumstances balanced against the circumstances, needs and moral claims of the claimants and other beneficiaries.
7. Ultimately then, to treat the Luciano case as establishing a legal principle, or a standard, runs the risk of deflecting the court from the full exercise of its functions.

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** for the trainspotters, the title today is riffed from a song by the Doors being ‘When the Music's Over'.

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