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The "Right to Reside" Now Open to Challenge

Thompson v Thompson [2015] VSC 706

This recent case shows that a simple “right to reside” for any spouse, is open to being challenged.

This case involves an application by the widow and second wife of the deceased (the Plaintiff). The Plaintiff was seeking further provision for her proper maintenance and support from the estate of the deceased.

The deceased died on 10 August 2013, aged 93 years. The deceased was survived by the Plaintiff and his two adult children from his first marriage, aged 67 and 68 years old.

The deceased and the Plaintiff began living together in 1979 and at the time each owned their own properties. In 1980 they sold their properties and bought a property together in Templestowe and later were married in 1987. In 1997 they sold their Templestowe property and used the proceeds to purchase an apartment in Collingwood which they own as tenants in common in equal shares.

In the deceased’s will dated 12 May 1995, the Plaintiff was given the contents of their home, the deceased’s car, the sum of $15,000 and a life interest in the deceased’s half share of the Collingwood apartment. The deceased’s children were given the residue of his estate in equal shares.

The deceased’s estate as at the trial date was in the sum of $673,000.00.

The Plaintiff was seeking further provision from the deceased’s estate by way of an absolute interest in the deceased’s one half share of the Collingwood apartment, instead of the life interest.

The defendant (the deceased’s children) did not concede that Plaintiff should receive an absolute interest in the Collingwood apartment and instead submitted that thePlaintiff be awarded an extended portable life interest in the deceased’s one half interest in the Collingwood apartment.

In determining the appropriate amount of further provision to be made, the Court assessed the need of the Plaintiff in comparison to needs of the deceased’s adult children. The Court examined the obligation of a deceased to his widow and that it was at least, to ensure that she has a roof over her head.

That roof has been provided either by matrimonial homes being awarded absolutely, sufficient funds to purchase another suitable residence, a life interest in a property or even a mere right of occupancy.

The normal duty of a testator, expressed in traditional terms, is to provide a widow with the security of an appropriate home in which to live, a secure income, and a fund with which to meet unforeseen contingencies.

The Court looked at the deceased’s obligations to his second wife and his obligations towards his adult children by his first wife. The Court had to determine the type of interest that should be provided to the Plaintiff in the Collingwood apartment: an absolute interest as opposed to an extended portable life interest.

An absolute interest to the plaintiff means the property would pass under the provisions of her will whereas an extended portable life interest ensures that the deceased’s interest in the Collingwood apartment will pass to his adult children on the death of the plaintiff. The latter course was a wish clearly expressed by the deceased in his will.

The Court indicated that the estate was not large and acknowledged that it was not uncommon in second marriages where both wished to preserve assets to be left to their respective families. The Court noted that the deceased wished that his adult children should benefit from his estate after the death of the Plaintiff.

In concluding the Court held that further provision is to be made for the Plaintiff from the estate of the deceased by providing her with an extended portable life interest in the Collingwood apartment. This provided a more flexible arrangement for the Plaintiff as she is able to stay in the apartment for as long as she needs, and then if required, she may use the value in the house to fund an accommodation bond at a retirement village. This also preserved the deceased’s wishes that his financial interest in the apartment passes to his children on the Plaintiff’s death.

At Estate Lawyers, we are experienced practitioners and can provide you with advice as to the merits of your claim and assist you with bringing a claim against the estates. Call us now on 03 9088 3185 (Melbourne) or 02 9188 2032 (Sydney).

This article was written by:

Linda Hart
Senior Associate
Direct Tel: 03 9088 3178
Email: linda@estatelawyers.com.au

Author Estate Lawyers

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