The deceased died owning three properties in New South Wales, each worth over a million dollars.[i] He also owned four apartments and two shops in Cyprus, was entitled to a 1/6 interest in his late father’s estate, and had about $100,000 in a bank account.

Dealing with overseas assets

In his will, the deceased gave his wife a life interest in the three properties in New South Wales, and upon her death to be transferred to one of his daughters. The deceased’s wishes regarding the Cyprus properties and the interest in his late father’s properties could not be distributed as per his will, and had to instead be distributed under Cypriot law. That law said 1/6 would pass to his wife, and the remaining 5/6 shared equally between his two daughters.

The deceased’s wife made a claim on his estate, arguing that she had been left without adequate provision.

The Court said that a two-stage test should be used in determining her claim. The first step was to determine whether adequate provision had been made for the deceased’s wife in his will, and if not, then the second step required working out what provision should be made for her.

The first question is to assess whether the Court can make an order for provision. In this matter, the Court said they could make an order for provision because they deceased did not adequately provide for her in his will.

The Court’s attention was drawn to another case where it was said that generally and in normal circumstances, a will-maker (“testator”) has a duty to his widow, as far as his assets allow, “to ensure that she is secure in her home, 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”.[ii]

The Court considers a range of factors in determining what provision should be made for an eligible claimant. In this case, the Court focused on the deceased’s wife’s age, health, financial position, income and earning capacity, and future needs, as well as the competing beneficiaries’ interests.

In the end, the Court decided that the matrimonial home should be transferred absolutely to the deceased’s wife, and that she should receive a sum of money, which if invested, would enable to her to cover her current expenses and further expenditure including travel and housekeeping assistance.

It was suggested that the wife’s monthly expenses, taking into account her future needs, would amount to approximately $5,000 per month. The Court therefore decided that an amount of $900,000 would be sufficient for her, in addition to the transfer of the matrimonial home, based on an estimation of her living to the age of 90. The Court also decided that a further $100,000 should be provided to her for any contingencies.

[i] Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396

[ii] Luciano v Rosenblum (1985) 2 NSWLR 65, 69-70 per Powell J.