Spouses challenging each other's wills: Everything she (or he) wants**

Last week's post considered the right of a current surviving spouse to challenge a deceased estate (often referred to as family provision or testator family maintenance applications) on the first of the couple to die.

The case of Sarant v Sarant [2020] NSWSC 1686, provides an instructive iteration on this theme in a situation where the couple had been separated, living in the same house, for 4 years before the wife's death.

Other key aspects of the factual matrix included:

1. The main asset of the estate was a 50% share of the house the couple lived in, which was owned as tenants in common at the date of death, due to a unilateral severance of the joint tenancy by the wife prior to death.
2. The marriage between the couple was 44 years in length before their separation.
3. The couple did not divorce and there may have been some level of reconciliation close to the time of the wife's death.
4. The wife's will gave her estate to the 2 daughter's of the marriage, who the husband was estranged from.

In a very detailed judgment the husband was awarded the wife's 50% interest in the house, adjusted by the need for him to make a payment to the estate and also provide a charge over the property to his daughters entitling them to 30% of the sale price on ultimate disposal.

The court also confirmed:

1. The court expects legal representatives to give real consideration to the merits of the other party’s case and provide reasoned submissions on what is, or what is not, “adequate and proper provision in all the circumstances of the case” when asked.
2. The duty to the court of a legal representative requires them, where necessary, to restrain the unreasonable enthusiasms of the party represented, which, ultimately, is in the party’s best interest and is more likely to ensure that a just result is reached sooner and with less expense (see Thomas v SMP (International) Pty Ltd [2010] NSWSC 822).
3. The impact of unfulfilled promises or disappointed expectations may sometimes be relevant when a family provision claim reaches the stage that the moral duty of the deceased is under consideration (see Re Stojanovska; Stojevski v Stojevski [2020] VSC 702).
4. As a rule, when arrangements are made between close relations, for example, between husband and wife, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from family members generally intending to rely solely on family ties of mutual trust and affection. There may, however, be circumstances in which the presumption, like all other presumptions of fact, can be rebutted (see Jones v Padavatton [1968] EWCA Civ 4 and Balfour v Balfour [1919] 2 KB 571).
5. The inadequacy of provision is assessed at the time when the court is considering the application, however, considerable weight should be given to the assessment of a capable willmaker, who has given due consideration to the claims on their estate (see Sgro v Thompson [2017] NSWCA 326).
6. The court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of will making (see Pontifical Society for the Propagation of the Faith v Scales and McKenzie v Topp [2004] VSC 90).
7. The bond of matrimony gives rise to a testamentary obligation, which can not be assumed comes to an end on the parties separating without them being divorced, at least where there has been no conduct by the applicant disentitling provision (see Kalmar v Kalmar [2006] NSWSC 437).
8. Where a spouse is elderly, generally they should not be given a large capital sum, because this may result in a substantial benefit passing to their chosen beneficiaries, which is contrary to the wishes of the deceased (see White v Barron [1980] HCA 14), although the fact that the provision of a capital asset to the spouse may, incidentally, enable them, in due course, to pass that asset contrary to the deceased’s wishes, is not determinative of the propriety of such a provision (see Worladge v Doddridge (1957) 97 CLR 1).

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** For the trainspotters, the title of today's post is riffed from the Wham! song 'Everything she wants'

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