An increasingly common dispute in estate litigation is that between the surviving spouse of a second marriage, and the children of the deceased person’s first marriage.

Balancing the competing interests of a second spouse, as against the interests of the children from a first marriage, is a particularly tricky and sensitive area. Increasingly, applications are filed pursuant to the Succession Act 2006 (NSW)* by the children of a first marriage whereby an order is sought from the Court for provision, or further provision, from the deceased parent’s estate in circumstances where that parent did not make any, or adequate, provision in their Will for those children, but instead, left the entirety or the majority of their estate to their surviving second spouse.

Both legally and socially, it is expected that a testator has an obligation to make adequate provision for their surviving spouse, so as to ensure that spouse has secure accommodation and/or income to enable him/her to remain living in the manner and style to which they are accustomed. Generally speaking, a surviving spouse has a strong claim in respect of a deceased spouses’ estate.

However, the questions arises as to whether and in what circumstances it is appropriate to make exclusive provision for one’s spouse and no provision for one’s children.

Where there is a dispute between the interests of a second spouse and the children of the first marriage, the facts and circumstances of the case are highly relevant, and the outcome of each case varies widely upon those facts and circumstances, and the extent to which the matters set out below, are satisfied.

Matters Considered by the Court

Broadly speaking, when determining any application by an eligible person* pursuant to the Succession Act 2006 (NSW), the matters that the Court takes into account include, but are not limited to, the following:

• The financial position and needs of the applicant
• The relationship between the applicant and the deceased person
• The nature and extent of any obligation that the deceased person had toward the applicant, or any other person
• The size of the estate
• The interests and position of any other competing beneficiaries.
• The health of the applicant
• The age of the applicant
• Any contribution made by the applicant to the deceased’s estate.
• Any evidence of the deceased’s person’s wishes
• Whether the applicant was maintained by the deceased person
• The character of the applicant and any relevant conduct
• Any other matter that the Court considers relevant

In relation to any claims as between a surviving second spouse and the children of a first marriage, the Court may consider all or some of the above matters as relevant to the circumstances of the case.

In a case where the only asset is the matrimonial home in which the surviving spouse and deceased person resided, and that home was left to the surviving second spouse only, if a child of the first marriage were to make an application pursuant to the Succession Act 2006 (NSW), it could be difficult for that child to obtain an order in their favour if making such an order would effectively see the spouse without a home, particularly in circumstances where the spouse has no other asset, can demonstrate financial need and/or made financial contributions toward the property in question.

If, on the other hand, using the same case scenario, the estate was significant and consisted of more than the family home, and the child was able to satisfy the Court that an order for provision ought to be made in their favour on account of some or all of the above factors, then the Court may make an order for some provision to be made for the child from part of the estate, whilst leaving the surviving spouse with the home and a sufficient income to live in a manner to which she/he is accustomed.

Another scenario is where the surviving second spouse is quite elderly, the marriage was of a short duration, the surviving spouse made no financial contribution to the deceased’s property, and had a child of their own who would then ultimately benefit – to the disadvantage of the deceased’s child. In this type of case the Court may consider possibly making an alternate type of order to satisfy the competing interests of both the spouse and the child from the first marriage. For example, the Court could make an order to the effect that the surviving spouse only have a life interest in the property, or a right to reside there (so that it reverts to the deceased’s child upon the surviving spouse’s death), or the Court may make an order that the surviving spouse has a flexible movable life estate, that can be used to secure other alternate or more appropriate accommodation as necessary, with the value to return to the estate when the surviving spouse passes away.

Therefore the outcomes in this area of litigation vary quite widely, and are dependent on the various facts and circumstances of each case, and on satisfying the criteria as specified in the legislation*.

TERESA DODARO
Senior Associate
Edwards Family Lawyers

*Please refer to the Family Provision & Estates page on our website for general information on claims under the Succession Act 2006

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