Family provision

Geoffrey Steinmet married twice and died leaving the bulk of his estate to the children of his first marriage James and Nicole. He provided his second wife Gayle an indexed annuity of $52,000 per year (“the annuity”). Geoffrey executed the Will a few weeks before he died.

Prior to executing the Will Geoffrey sought and received Gayle’s agreement to its terms. Geoffrey’s Will contained a statement that he wished that his estate remained a whole for his children and grandchildren believing that the annuity enabled Gayle to live comfortably for the rest of her life without “having to dispose of the assets that I have worked my whole life for.”

Gayle seemed to think that the annuity was adequate when the Will was made. She was in a hospital room with Geoffrey and his solicitor. The draft Will was read aloud in her presence and attention was given to the annuity. Geoffrey increased the value of the annuity and asked Gayle: ‘Are you happy with that?’ To which she replied ‘Yes, but I keep telling you Geoff that I do not want anything from your estate’.

Following Geoffrey’s death Gayle became aware of the size of the estate and sought an alteration to the Will to leave her a sum of $2 million.

Geoffrey and Gayle began their relationship in 1988 but they did not marry until 2011 and he died in 2016.  Gayle had bought her own home in 1991, and had her own assets and additional income. During their relationship she was unaware of the precise extent and value of Geoffrey’s business and investments.

The disparity between the annuity and the gift to James and Nicole is considerable. But family provision cases are not simply about a comparison between the size of the estate and the amount of the provision that has been made for each beneficiary; or whether the annuity is fair or reasonable; or whether the deceased was wise or just. The question for determination is whether the annuity is not ‘adequate’ in all of the circumstances for her ‘proper’ maintenance or advancement in life.

The Court decided that the annuity will enable Gayle to continue to live in the home that she has owned since 1991. She will not be in a position to live extravagantly, but she did not do so when married. James and Nicole had a different relationship with their father and they have different needs.

The Court believed that Gayle did not establish that the provision given to her in the will is not adequate for her proper maintenance or advancement in life. She will not have the benefits, the security, the holidays, the comforts and the additional financial advantages that she enjoyed during her relationship with the deceased. But respect must be given to the judgment of a capable testator who knows better than anyone else ‘the virtues and failings of the members of his family’. And the Court must give sufficient weight to the principle of freedom of testamentary disposition.

Gayle argued that a testator cannot rule from the grave. However the Court believed that such a statement is correct if and only if, the application of the statutory language to the facts of the case warrants the intervention of the court.

After considering Gayle’s submissions the Court came to the conclusion that rewriting the Will to set aside the annuity and replacing it with a lump sum would have been anathema to Geoffrey’s Will.



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