A woman who cared for her ailing husband for years before his death, including periods where she stopped work, has lost a court bid to secure a share of his $1.9 million estate.
The Victorian Supreme Court decision is the latest in a series of cases across the country in inheritance disputes, and has highlighted the importance of establishing financial need to make a successful claim.
The man died in May 2024. He had made a will in 2006 that did not name his wife, a doctor in Melbourne, as a beneficiary.
He was survived by his daughter from a previous marriage, who was the primary beneficiary under the will.
His wife applied to the Victorian Supreme Court for a family provision order, which is a way for current or former dependants of a deceased, among others, to seek a larger slice of the inheritance pie if inadequate provision was made for them in a will. The courts will make such an order only on a needs basis.
“The plaintiff said she was hurt when she found out the deceased had excluded her from his will because she regarded their relationship as great and she had sacrificed a lot to look after the deceased for most of their married life,” Associate Justice Ian Irving said in his decision last month.
The daughter applied for the step-mother’s claim to be summarily dismissed – meaning rejected without a full trial – on the basis that it had no prospect of success.
‘The deceased’s rehabilitation took almost one year during which time the plaintiff stopped working to care for him.’
Associate Justice Ian Irving
The doctor told the court her financial position was stable. She owned an unencumbered house valued at $2.65 million as at March 31 last year, as well as owning two investment properties valued at a combined $3.1 million.
She also had “superannuation in the form of a further property which pays $25,000 per annum in rent and a term deposit of $300,000,” Irving said.
The doctor and her late husband married and started living together in 2006, but his health declined substantially in the following years. She made considerable sacrifices to care for him until his death.
“In 2009 the deceased had a stroke which left him, among other things, unable to speak, with double vision and poor balance,” Irving said.
“The deceased’s rehabilitation took almost one year during which time the plaintiff stopped working to care for him. The deceased recovered to the extent that he could travel with the plaintiff again but not sufficiently to recommence working.”
The wife returned to work but reduced her working hours to continue caring for him. His health deteriorated further from 2011, and she cut her hours of work again.
From 2020 until his death in May 2024, she was his full-time carer.
She told the court she was also responsible for caring for her mother who was 101 as of March 31 last year.
‘Unfortunately, the existence of a moral duty alone is not sufficient to found a claim.’
Associate Justice Ian Irving
“The plaintiff said that while she is ‘far from destitute’, she ‘sacrificed [her] career and [her] considerable earning capacity’ to care for the deceased when he was unwell,” the judge said.
The daughter conceded her step-mother was an eligible person to bring the claim but argued she had no real prospect of success because she has failed to demonstrate any financial or other need.
The judge agreed. “[Notwithstanding] the plaintiff’s strong moral claim, she has not demonstrated that she is unable to adequately provide for her own proper maintenance and support,” he concluded.
“Unfortunately, the existence of a moral duty alone is not sufficient to found a claim.
“[While] the plaintiff made continued and considerable sacrifices to look after the deceased and ensure his life was comfortable and enjoyable, her claim for provision has no real prospect of success.
“The plaintiff’s absence of need and her comfortable financial position are clear on the face of the evidence and are unlikely to change at trial. The relatively modest size of the estate also means that to allow the matter to proceed further would unnecessarily deplete the estate and delay its administration.”
James Penman, principal of Melbourne law firm Vita Legal, said the case confirmed that proving financial need is essential in a family provision case.
“While the court can take into account a wide range of factors, if you can’t prove actual financial need, your claim is going to fail,” Penman said.
He said that in family provision cases “the size of the estate is very important – it’s one of the first things you look at when advising a client about this type of claim”.
“In this case, however, it wouldn’t have mattered. The outcome would be the same if the estate’s assets were $5 million or $50 million.
“The claim failed because the plaintiff had no identifiable financial need. Once that fact was determined by the court, the claim had no chance of success.”
When financial need is demonstrated, the size of the estate is relevant.
“There was a recent case in NSW where a plaintiff sued his brother’s estate and got over $1.4m, despite him having a poor relationship with his brother,” Penman said.
“The plaintiff’s claim was helped by the fact the estate had $50 million in assets. The judge said that having a large estate allowed the court to ‘make a more liberal assessment’ of what the plaintiff should receive. If the estate was smaller, the plaintiff may have got nothing. But because there was plenty in the estate, he got over a million.”
Penman said that “one mistake plaintiffs often make is bringing a family provision claim thinking its purpose is to make things ‘fair’.
“The court is not concerned with fairness in these claims, and it will not, and cannot, rewrite someone’s will simply to make things equal between family members.
“Instead, the focus is on whether the plaintiff has been left with ‘adequate provision’ for their proper maintenance and support.”
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