In the recent case of Lewis v Every [2013] VSC 445, the son-in-law of the deceased successfully applied for further provision from the deceased’s estate. The estate consisted of a property at Rutherglen, valued at $195,000 and $500,000 in cash and investments. In his Will, the deceased had given his only daughter (the applicant’s late wife) a life interest in the Rutherglen property and income from the cash and investments. The applicant and his wife had been living in the property. The applicant’s late wife was the other applicant in the proceeding prior to her death.

In this matter, it was not in dispute that the deceased, in all of the circumstances, owed a moral duty to make provision for the son-in-law applicant because his wife (the deceased’s daughter):

  • suffered a lifelong disability and was not physically or intellectually well equipped to take care of herself;
  • had limited education and capacity for employment; and
  • needed full time or close to full time care in the decade prior to her death.

The real issue in the case was the nature and quantum of the further provision to be made.
In light of the circumstances, the Court considered that proper provision for the son-in-law required:

  • a life interest in the Rutherglen property, with appropriate flexibility to secure alternative suitable accommodation if necessary; and
  • setting aside a capital sum of $210,000 on trust to generate an income to supplement the son-in-law’s pension, of which $30,000 could be utilised by the appointed trustee to effect any necessary and appropriate repairs and improvements to the home or any subsequent property in which the son-in-law holds a life interest.

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