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A Crisp opportunity

As our population ages it is increasingly obvious that life estates are not an attractive option in blended family situations where, for example, a widow, who is a second wife may not want to live in the matrimonial home forever and may also not want to continue a relationship with her stepchildren.   In a recent case (Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713) a will-maker went in secret to a solicitor he had not previously seen to change his Will.  The Will granted the widow (a second wife) a life estate in the matrimonial home. The widow was under the impression that she would be left the home. The widow challenged the Will arguing that there were suspicious circumstances.  The widow did not argue that her husband had lacked capacity to make the Will.  The Judge found on the evidence (particularly thanks to a solicitor’s contemporaneous file note) that the Will-maker was “clearly cognisant” of his actions and their potential impact on his surviving family members.   The Judge (Kunc J) thought that a failure to discuss testamentary affairs was “not necessarily a cause for suspicion” especially when the change “might excite disagreement“.  However, the Judge was prepared to make changes to the Will based upon a family provision claim by the 74 year old widow.  She had been married to the testator for 17 years.  The Judge noted that the widow needed flexibility and would want to move from the matrimonial home as she aged.  He acknowledged a life estate, for this reason, was inadequate provision.  Noting that the home had a value of approximately $1m and that alternative accommodation might cost $800,000, the Judge decided that in all the circumstances, including the need to do “the least violence” to the testator’s wishes, the widow should have the benefit of a “Crisp order” (portable life estate) together with $45,000 for contingencies to cover expenses for repairs to the home whilst she lived there.  Interestingly, the testator’s son offered to “resign” as co-executor if a Crisp order were made and the widow would then remain sole executor and mistress of her destiny. This was a factor which also influenced the Judge in finding that the Crisp order was acceptable.  This could therefore be a negotiating tool worth considering.

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