Life has certainly changed in the last 50 years. It used to be the case that most people married once, had 2 to 3 children, 1 car and a television set. Now people are getting married for the second and third times.
What happens when, for example, “John” and “Susan” marry for the second time. Each have children from their first marriage. John’s children do not live with them, but Susan’s children do live with them.
If John dies before Susan, he would normally provide for Susan in his will. Susan’s children would feel comfortable, knowing that their mother would leave her estate to them once she passed away. John’s children would not have the same level of comfort. Will Susan leave anything to them?
Under the New South Wales Succession Act, the Supreme Court has the power to change a deceased’s will. An eligible person can make a claim where adequate provision for the proper maintenance, education or advancement in life of that person has not been made by the will of the deceased.
The Succession Act defines who are “eligible persons”. One category of eligible persons are “children”.
In John and Susan’s case, John’s children are not Susan’s children. They are not eligible persons in her estate. They are, however, eligible persons in their father’s estate.
In these not uncommon circumstances, John’s children may make a claim for further provision out of their father’s estate. If the claim is successful, it would have an effect on Susan’s entitlement. If they wait until Susan dies, they will not be able to make a claim as they are not “eligible persons” in Susan’s estate.
The Supreme Court has dealt with these types of claims on many occasions. These claims will be determined on their own particular facts. As a broad general rule and in the absence of special circumstances, John’s general duty is to Susan. To the extent to which his assets permit him to do so, he is to ensure that Susan is secure in the matrimonial home and to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed and to provide her with a fund to enable her to meet any unforeseen contingencies. The amount should be sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail.
There are circumstances where John’s children would succeed. Some examples are where the funds are sufficient to make further provision for them, or they have special needs.
These modern times of “blended families” create unusual circumstances. The law in this area is complex and legal advice should be obtained.
