How much of your estate should you leave your partner in your Will? The recent Victorian Supreme Court decision in Walters v Perton is a reminder that partners must make adequate provisions in their Will for their surviving partner's proper maintenance and support.
The Case
Mr Warring and Ms Walters were long-term de facto partners who lived in Melbourne. Mr Warring passed away in 2017, leaving behind an estate worth $2,950,000. In his Will, he provided Ms Walters with the right to reside in their family home rent free for six months, $200,000 from the sale of the property, and $10,000 in relocation costs.
The Court ruled this provision was inadequate and ordered an additional $1,540,560 to go to Ms Walters. The Court's reasoning was heavily influenced by her financial needs — aged 80, renting alone on just her pension and superannuation after her adult son had passed away.
What Is "Adequate" and "Proper"?
What constitutes adequate provision and proper maintenance will differ in each case. The Court considers factors including:
- The nature of the relationship between the surviving spouse and the deceased
- The size of the estate
- The financial resources and needs of the surviving spouse, including earning capacity
- Contributions made by the surviving spouse in building up the estate
- The effect of any court order upon other beneficiaries
- The capacity of the estate to make provisions
Although you cannot predict if your partner's circumstances will change after your passing, it is essential you consider them when writing your Will. Speak to the estate specialists at Kingston Lawyers who can advise in these matters.