Wife support: FPA by widow dismissed with costs (NSW)

It is a suggestion that arises throughout many estate disputes that the claim of a widow on an estate should be paramount to those of other family member who survive the deceased person. However, as each case is determined on it’s merits, this is not always the case.

Yesterday, the Supreme Court of New South Wales ordered that a widow’s claim be dismissed and she be ordered to pay the costs of the executors who defended the estate.

In Steinmetz v Shannon [2018] NSWSC 1090, the deceased was survived by his wife and two children, from his first marriage.  The deceased and his wife enjoyed a long relationship (from 1988 until his death) and had married in 2011. The deceased left a Will providing that the bulk of his estate to be given to his two children (from his first marriage) with an annuity in favour of his widow in the amount of $52,000 per annum. The present value of the annuity was said to be $880,000.

The deceased’s Will contained an express statement:

“It is my express wish that my Estate remains a whole for my children and grandchildren.  I have drafted my Last Will and Testament in the above manner as I believe that it enables my wife to live comfortably for the rest of her life without having to dispose of the assets that I have worked my whole life for.”

The widow claimed that the annuity was not adequate and made a claim for further provision from the estate.

The estate was worth $5.2 million plus approximately a further $1 million held a superannuation fund that was not subject to a binding nomination.

In considering the application by the widow, the Court found the widow to be an unimpressive witness and questioned the accuracy of some of her evidence (at para 12). The Court noted that the deceased and his widow retained “considerable financial independence and sometimes physical distance” noting that the relationship was not one that involved the sharing of children.  The Court also noted that they did not marry for some 23 years and they “always retained a quality of independence” (para 14).

The Court acknowledged that the deceased’s daughter was heavily involved in the conduct of her father’s real estate business and the management of his financial affairs. The Court regarded her as an impressive witness and did not consider that her and her brother (as executors) could not faithfully administer the annuity to the widow (para 26-28).

Considering the size of the estate and the deceased’s exercise of his testamentary freedom, the Court said:

“The deceased’s estate is certainly large enough to accommodate the plaintiff’s aspirations without causing undue hardship to the defendants. But why should it? After all, it is his property, his choice and his final act.  He was proud of his success in building considerable assets for the benefit of the following generations of his family. He saw it as his life’s achievement. His will referred to the assets ‘that I have worked my whole life for’.” (para 31)

While referring to previous authorities on testamentary freedom, the Court adopted strong words in paras 32-34 and said:

“Taylor J Explained in Stott v Cook (1960) 33 ALJR 447 at 435-453 why it is wrong in principle, other factors aside, to ‘redistribute’ an estate simply because it is large enough to do so without disadvantaging the other beneficiaries:

“After all a testator’s property is his own and he is entitled to dispose of it as he pleases subject only to correction if he omits to make proper provision for those whose maintenance, education or advancement is his especial responsibility.  The word ‘advancement’, is, as was pointed out in McCosker v McCosker (1957) (97 CLR 566) a word of wide import but it does not justify the redistribution of a testator’s estate merely because it is of considerable value and because those to whom it has been given can well afford to have their interests diminished in order to confer a benefit upon a disappointed son or daughter.”

As was said in a New Zealand decision, ‘the statute is not an Act to modify or set aside unjust wills, but is meant only to provide for maintenance of persons whom the testator was bound to maintain‘: Handley v Walker (1903) 22 NZLR 932 at 933.  We do not simply ride roughshod over the solemn wishes of a testator that have been formally and deliberately expressed in his last will and testament.  We do not re-distribute a testator’s wealth according to indeterminate and unreliable concepts of such fairness or equity.  The law requires courts to respect a testator’s freedom of testamentary disposition, to recognise that the making of a will is often the last and most significant decision a person might make, and to interfere only to the extent rendered necessary by the application of the statutory language to the particular circumstances.  

We will do the community a disservice if our decisions lead ordinary persons to believe – and solicitors to advise – that a will is hardly worth the paper on which it is written. Unless a tight rein is exercised – comformably with principle and authority – the court will just become a shopping forum in which unmeritorious and misconceived claims multiply. In Sgro v Thomson at [88], White JA referred to the disturbing increase in these claims in New South Wales:

“Applications are filed in the Supreme Court’s Family Provision List at an average rate of about 80 per month. One commentator has criticised the apparent readiness of courts to vary the expressed will of the deceased by granting family provision claims (A Gray, ‘Family Provision Applications: A Critique’ (2017) 91 ALJ 750.”

[my emphasis added]

You can read the case here.

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