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Contesting Wills - Late Partners Must Leave Adequate Provision For Surviving Spouses

In a recent Victorian Supreme Court decision, a de facto spouse successfully argued that the Will of her now-deceased partner failed to provide adequate provision for her own proper maintenance and support. 

In Walters v Perton, the Court considered a series of mandatory and discretionary matters set out in the Administration and Probate Act 1958 (Vic).  These include (but are not limited to):

  • the relationship between the surviving spouse and deceased;
  • the size of the estate; 
  • the spouse’s earning capacity; and 
  • contributions they made to the estate. 

In this case, the Court held that the deceased’s intended provision for their surviving de facto partner under the Will - involving $210,000, and rent-free accommodation for six months - was not adequate, later awarding substantially greater provision in the amount of $1,540,560. 

This case serves as a reminder that Courts expect a deceased to provide for, or more meaningfully provide for, a surviving spouse or long term de facto partner under their will. 

Maddocks Lawyers

Factual Background

Lynne Walters was a long term de facto partner of the deceased, Donald Graeme Warring.  The couple had met in 1996 and commenced a domestic relationship shortly after.  In 2002, the couple moved from New Zealand to Melbourne to allow Mr Warring to be more involved in the operation of his telecommunications business.  Their relationship continued until Mr Warring’s death on 4 February 2017.

On 20 October 2015, Mr Warring signed a Will naming the executor and trustee of his estate as Jane Perton, Mr Warring’s adult daughter and defendant to the proceedings.

The Will provided Ms Walters with rent-free accommodation of their family home in Eaglemont for a period of six months, a sum of $200,000 from the proceeds of sale of the Eaglemont property, and a further $10,000 to assist with relocation costs.

Following Mr Warring’s death, Ms Walters continued to live at the Eaglemont property and subsequently left to live in rental accommodation in accordance with the terms of the Will.  Ms Walters lived with her son from a previous relationship, Sean, and his children:  under those living arrangements,  Ms Walters and Sean each paid 50% of their rent.  Following Sean’s sudden passing in September 2022, Ms Walters began paying 100% of the rent.

Ms Walters contended that the amounts provided under the Will have failed to make adequate provision for her proper maintenance and support.

Did the Will make adequate provisions for the proper maintenance and support of Ms Walters?

The key issue for the Court to determine was whether the deceased’s will made adequate provision for the proper maintenance and support of Ms Walters.

The Court held the amounts provided for Ms Walters under the Will were inadequate.

In making its determination, the Court was guided by a series of mandatory and discretionary considerations set out in the Act.  These considerations are broadly directed at assessing the deceased’s reasons and intentions for the distributions under the Will, the nature of the relationship between the domestic partner and the deceased, the domestic partner’s earning capacity, the domestic partner’s contributions to the estate, the effect of any order upon other beneficiaries, and the capacity of the estate to make provision for the domestic partner.

The amount of provision is further guided by: 

  • the degree to which the estate had a moral duty to provide for Ms Walters, guided by current community standards; and 
  • a requirement that the quantum must not be greater than is necessary for Ms Walters’ proper maintenance and support.

Court Decision

The Court determined that the provision in the Will did not ‘adequately provide a roof over [Ms Walters’] head’ given her need to remain in Melbourne to care for Sean and his children.  The provision provided no allowance for contingencies or a nest egg, leaving Ms Walters entirely dependent on her pension and superannuation.

In making its determination, the Court was guided by the relevant considerations previously described pursuant to ss 91, 91A of the Administration and Probate Act 1958 (Vic).

The relevant considerations in the Court’s determination were:

  • There was no reliable evidence of Mr Warring’s reasons for his dispositions under the Will.
  • Mr Warring was aware of the financial dependence of Ms Walters, and intended to support Ms Walters, her son Sean and his children.
  • There was a close and lengthy relationship between Mr Warring and Ms Walters, characterised by his encouragement that Ms Walters would be supported, and the fact that she was financially dependent upon him in all aspects of their joint life.
  • There were no other eligible persons or beneficiaries who required further provisions or a specific bequest, other than Ms Perton.  Though there was little evidence surrounding Ms Perton’s financial circumstances, the Court determined that Ms Perton had access to ‘substantial financial resources’ due to her complex personal financial arrangements.
  • At the time of determining what would constitute adequate provision (in a subsequent decision), the estate was valued at $2,950,000 (it having originally been $1,750,000).
  • Ms Walters had very limited financial means following the death of Mr Warring, including that she:
    • had no earning capacity due to her age (being approximately 80) and time out of the workforce;
    • had no substantial assets, except for an old car and some savings collectively worth $10,000 and approximately $33,000 of remaining equity from the sale of her house;  
    • had limited income sourced from her pension and superannuation whilst living in rental accommodation with Sean and his children: the Court found that her rental payments were ‘unsustainable’ based on her income;
  • Ms Walters contributed to the estate as a domestic partner, hostess and carer for Mr Warring.  In agreeing to move from New Zealand to live with Mr Warring in Melbourne, Ms Walters had further contributed to Mr Warring’s welfare by allowing him to have a greater involvement in the running of his telecommunications business.

Having found in Ms Walters’ favour, the Court ordered the provision of $1,540,560, comprising:

  • $1,380,000 for Ms Walters to obtain suitable accommodation;
  • $120,000 for a nest egg; and
  • $40,560 for contingencies.

Litigation is no substitute for making appropriate estate planning

Despite Ms Walters obtaining a satisfactory result from this matter, litigation is stressful and expensive, and the outcomes are uncertain.

This case is an important reminder that, in preparing a Will, a Will-maker must give careful consideration to those in respect of whom they have a moral duty to provide, which may include their spouse/domestic partner, child/step-child, grandchild or member of the household. 

More information from Maddocks

For more information, contact Maddocks on (03) 9288 3555 and ask to speak to a member of the Commercial Practice Group.

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Lawyer in Profile

Sophie Edgar
Sophie Edgar
Lawyer
+61 3 9258 3201
sophie.edgar@maddocks.com.au

Qualifications: BA, LLB, Deakin University

Sophie is a member of Maddocks Commercial team. She is a corporate and commercial lawyer with a particular focus on:

  • mergers & acquisitions,
  • contract drafting,
  • corporate restructures, and
  • general corporate advisory.

She regularly assists clients across multiple sectors including consumer markets (beauty and retail), industrial (manufacturing and distribution) and financial services. Her private sector clients include multinationals, private equity funds and founders.

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