Life interest in a long marriage: is it enough?

Reasons for judgement were handed down recently in the Wills Variation case Anderson v. Coles.

In the case, the deceased was survived by his second wife, after a 20-plus-year marriage. The wife did not get along well with the deceased’s children.

In the Will, she was left a form of life interest in the matrimonial home and a life income from the other assets of the Estate. As long as she remained alive and (under this Will) did not enter a new relationship, she could live in the house and receive the income generated from the rest of the Estate.

After the husband died in 2012, the wife sought to vary the Will, and was successful. She was given a half-interest in the house and a lump sum of $90,000.

Though it is too early to tell whether this case will be appealed, the decision is important.

The Court carefully analyzed the case, partly from the perspective of a division of assets in a matrimonial action, as the parties had separated not long before the deceased’s death.

However, even from an Estate perspective, the parties had been married for more than 20 years, a lengthy period, and there were additional factors that made the variation of the Will sensible in this case.

The case also shows that it is hard to keep finances separate over the years of a relationship, and then assuming the Court will carry that approach into a Wills Variation litigation. A marriage or co-habitation agreement may be fitting.

This ad ran in the Richmond News on January 15, 2016.