How much is enough? Minimum adequate provision for a spouse in a will
Consider the following scenario
- You are making a will;
- You have been married to your current partner for many years – but this is not your first relationship.
- You were married previously, and had children by that relationship.
- You have no children of your current relationship.
How do you balance the competing tension of providing for your current relationship, and also your children of your previous relationship? Is there such a thing as “minimum adequate” provision for a spouse? The starting point is you can draw your will however you please – but there are laws that will permit certain people to claim on your estate.
Therefore, we must understand what the law thinks ‘spouse’ means in this context. To claim on an estate, you have to be an eligible person – for a spouse that means you are either married (even if separated but not divorced), or you are in a de facto relationship at the time of the will maker’s death. Provided that threshold question is met, then the question becomes whether the provision made for the spouse is “adequate” for their “proper maintenance, education or advancement in life”.
The language of the law is very general: there is no fixed definition of “adequate” or “proper” provision, instead leaving the determination to the court based on the facts of a specific case. The court has very wide power to fashion provision once it has conducted its evaluation with reference to “community standards” and moral obligation.
So then, is there a community standard, or a moral obligation, to provide for a spouse under a will? Some cases have concluded that there is, the reasoning including:
- A marriage is entered into with formality and solemnity, recognised by law as a relationship to be preserved and protected, and solemnised in a ceremony that usually includes statements of support and obligation.
- Though in times past it was said that a widow has a greater need than a widower, the are treated equally in the present day.
- Often one party to the marriage may have made economic sacrifice or now suffers a disadvantage due to decisions taken in the course of the relationship – raising children, leaving their own employment to support or advance the other’s career.
- A marriage cannot be ended on a whim – divorce is a legal process requiring the approval of the Court before the legal relationship is ended by declaration.
- Some cases have gone as far as saying that the duty of one spouse to their widow is to provide security of housing, income to maintain their standard of living and funds for contingencies.
However, recent clarification of the position shows that although there may be “rules of thumb” which give rise to the expectation of provision for a spouse (and the above reasons form the basis of that), it is not correct to say that a spouse must be provided for, or must be provided for to a certain standard. Every case turns on it’s own facts and any claim for provision must be determined by the statutory test applied to the circumstances of the case, not “preconceived rules or assumptions”. Even if a spouse does receive provision in a claim, it is not by reason of their identity, but instead the proper application of the law to the facts of the case.
To ensure that your spouse is provided for in the way you deem best, contact our specialist estate team on either (02) 8197 0105 or contact@streeterlaw.com.au so that we assist you with your will.
