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Written by Sanjana Malewar, Trainee Solicitor on 1 August 2023.

How much of your estate should you leave your partner in your Will? How long is a piece of string?

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.’ Your spouse or long-term de facto partner can contest your Will after your passing if they believe it does not provide them with enough financial support, as well as other ‘eligible persons’ specified in the Administration and Probate Act 1958 (Vic).

In Walters v Perton, Mr Warring and Ms Walters were long term de-facto partners who lived in Melbourne. Mr Warring passed away in 2017, leaving behind a large estate worth $2,950,000. He had appointed his adult daughter Jane Perton as his executor and trustee, who became the defendant in the proceedings. In his Will, Mr Warring had provided Ms Walters with the right to reside in their family home rent free for six months, along with the sum of $200,000 from the sale of the property and an additional $10,000 in relocation costs. The Court ruled this provision to Ms Walters was inadequate and ordered the provision of an extra $1,540,560 to go to Ms Walters.

What is meant by ‘adequate’ and ‘proper’?

What constitutes an ‘adequate provision’ and ‘proper maintenance and support’ will differ in each case, with the Court considering a series of mandatory and discretionary factors set out in the Administration and Probate Act 1958 (Vic). Along with a consideration of the degree to which the estate had a ‘moral duty’ to provide for the surviving partner and the requirement that the quantum must not be greater than necessary for their proper maintenance and support, the Court is guided by the following factors:

• the nature of the relationship between the surviving spouse and deceased person;
• the size of the estate;
• the financial resources and needs of the surviving spouse, including their earning capacity;
• contributions made by the surviving spouse in building up the estate;
• the effect of any order of the Court upon other beneficiaries; and
• the capacity of the estate to make provisions for the surviving partner.

Each of these factors are given different weight by the Courts.

The Court’s reasoning in ordering the additional provision to Ms Walters was heavily influenced by her financial needs and earning capacity. After moving out of the family home, Ms Walters aged 80 years old, was renting alone as her adult son from a previous relationship whom she was living with at the time, had passed away. The Court held it was ‘unsustainable’ for her to make rental payments with only her pension and superannuation as sources of income. Given Ms Waters did not have significant assets and there were no other beneficiaries except for Ms Perton, who herself had access to substantial financial resources, the Court ordered the additional provision to be made. Further considerations included the close and lengthy relationship between the parties, Ms Walters contributions to the relationship as a hostess and carer for Mr Warring, the fact that Mr Warring would have been aware of Ms Walters financial dependence on him and his intentions to support her and her son.

It is important to note while your estate will be distributed to your wishes, you do not have unfettered discretion as to its distribution. 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.