“Spousal primacy” – Who gets an estate when there isn’t enough to go around?

Where a Willmaker wishes to avoid a challenge to their Will on the basis that a person has not been adequately provided for, their main task is to consider each of the persons to whom they owe a “moral duty” and weigh those claims against each other.

This exercise can be difficult when an estate is not large enough to provide for everyone who might have a need or a claim. This issue more commonly arises in the case of blended families or second relationships, and in balancing the needs of a new spouse against the needs of children from a prior relationship, the exercise becomes fraught for even the most well-meaning and careful Willmaker.

For better or worse, case law consistently provides for “spousal primacy”; the concept that a person’s primary duty, all things being equal, is to their spouse. The rule of thumb, for estates large enough to afford it, is that a testator should not leave their spouse without secure accommodation, an income or a nest egg. There can, of course, be factors that disrupt spousal primacy; but it is the starting point. A recent case in the New South Wales Supreme Court provides an example of when a widowed claimant was unable to establish spousal primacy.

In coming to its decision, the Court took into account various factors including that the parties had agreed early in their relationship to keep their finances separate, and by the date of death, their relationship had deteriorated (largely as a result of disputes about the terms of the wife’s Will).

Facts – Schneider v Kemeny [2021] NSWSC 524

The deceased, Kathy, died leaving a second husband of 14 years (Michael), and two children from her first marriage. Kathy’s net estate was valued at $2.9M, and consisted primarily of the house she owned solely and lived in with Michael. Kathy’s will left Michael with a right to reside in the house for 6 months following her death and approximately $100,000 of superannuation and chattels. The remaining bulk of her estate was to be split between her two children.

Michael issued a claim for further provision, seeking the sum of $1.5M to enable him to purchase secure comparable accommodation. The matter proceeded to trial where Michael was ultimately unsuccessful.
In rejecting Michael’s claim, the court took into account:

  • That Michael, despite not having secure accommodation, did have a nest egg and the ability to earn income;
  • That Kathy and Michael had kept their finances strictly separate during their relationship;
  • That Kathy had been very clear in her intentions to provide for her children and her estate consisted primarily of assets she had acquired prior to her marriage to Michael; and
  • That Kathy and Michael, despite being married, had a very poor relationship prior to Kathy’s death.

The court found that “[Michael’s] provision may not have been generous but it was entirely commensurate with the tenor of their relationship and their dealings with each other since its inception”. No further provision was ordered by the Court and the lawyers for the Estate will now no doubt make submissions as to how the $642,228 of legal fees incurred in the proceedings should be paid.

How we can help

Whilst Schneider v Kemeny is a New South Wales decision and consequently not binding in Victoria, it is a timely reminder that a plaintiff spouse in any jurisdiction should not issue proceedings on the sole premise of spousal primacy.

The case is also a reminder that in second relationships, evidence of the parties’ intentions or agreement not to claim on the other’s estate and of keeping separate finances, while not an absolute bar to a claim, can be a relevant factor. For more information or guidance, please do not hesitate to contact us.