Ex-wife strikes gold from Father-in-law’s Estate

09 JUL 2018


In the rough and tumble of Family Provision cases, it is rare to see an individual outside the set parameters find a little luck in the system. Yet, this was to be the case in the 2014 judgment of Oakes v Oakes, whereby a former daughter-in-law, who was married to the deceased’s only son and divorced three years prior, was granted $131,000.00 after challenging the Estate of her late father-in-law.

To be successful in a claim, there is a two-part test. The first being that you are an eligible person, the second being that proper provision was not made for you and that this failure was not warranted. In this case, the former daughter-in-law claimed she was a member of the household of her former father-in-law and partly dependent upon him. Despite the fact that she did not share a home with the deceased, the Court held that for at least 20 years, he had provided for her in the form of a separate home on the same property.

When the deceased’s son separated from his wife, the father-in-law allowed her to remain in the home. The kindness in allowing her to stay beyond the divorce date was the ultimate downfall in defending the claim. The Court took this as the former father-in-law believing he had an obligation to her in the wake of his son’s sudden change of heart, leading to her ultimate dependence on him to provide when his son would not. This indicated she was, in an indirect way, part of the deceased’s household and partly dependent, therefore making her an eligible person to make a claim.

As for the second part of the test, the Court acknowledged that she had made substantial physical and financial contributions to the property, and did so because she believed she would receive a substantial share. She had received nothing by way of a property settlement following her divorce and the deceased’s son’s outward refusal to acknowledge this misdeed only furthered the Court’s fury. In the end, the Court felt that because of her input to both the life and property of the deceased and the fact that she had left a thirty-year marriage to the deceased’s son with nothing more than the burden of children, she was as such entitled to provision.

It is interesting to note that had the deceased’s son simply paid his share in the divorce settlement, the outcome may have been different. While this is the exception to the rule, it does highlight the extension the Court is willing to make to ensure the right thing is done.

If you have any questions or require any advice please do not hesitate to contact our estate planning expert, Krystle Wolthers, on (02) 4626 5077.    

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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