Which case won?

The case for the de facto spouse
  • When we purchased the home unit, my partner promised me that it would always be my home. She regularly repeated this promise.
  • I made significant financial and non-financial contributions to the acquisition, maintenance and improvement of the property while my partner was alive.
  • Since she died, I have paid $48,000 of my own funds on the mortgage and other loans owing on the property.
  • My financial needs are greater than the needs of my former partner’s sons. This includes the need for ongoing accommodation.
  • I am morally and legally entitled to and should receive sole ownership of the property which has been my home for many years. I have always remained hopeful that my former partner’s sons would ultimately understand and recognise this.
  • The court should make a family provision order making me the sole owner of the property.
The case for the son
  • When my mother’s former partner says “we purchased the home unit”, he is being untruthful. He was never an owner of the property.
  • My mother never intended to leave the property solely to him. Her will makes this very clear.
  • My mother’s former partner refused to sell the house when we found a buyer, refused to sell us his half share, and refused to buy our half share from us. While maintaining a pretense of continuing negotiations, he married and had his new wife and her children move into the house without informing me. Clearly, he had no intention of allowing the property to be sold.
  • He has lived in the house rent-free for seven years. In this time the estate could have earned over $100,000 if it had been rented to commercial tenants.
  • There has been prejudice to me and my brother in having the final distribution from our mother’s will delayed. The court should remove my mother’s former partner as co-executor and order that he vacate the house, so it can be sold without further delay.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a29%
case b71%

Expert commentary on the court's decision

Kurt Topper
Kurt TopperDirector
“This case underscores the importance for willmakers of getting the executor selection right at the outset, to avoid conflict and unnecessary delays and costs.”
Supreme Court decides in favour of sons

In the case of Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726, the Supreme Court of NSW ordered that the de facto spouse, Mr Stephen Barry, be removed as an executor and the son, Mr Shane Wise, be appointed as sole executor, so that the final administration of the estate of Ms Robin Wise could be concluded promptly.

The court ordered that vacant possession of the property be given within 28 days and a writ of possession be made. Mr Barry’s claim for a family provision order was dismissed.

Revoking a grant of probate and removing an executor

The Supreme Court has an inherent power to revoke a grant of probate and remove an executor.

This is a matter of discretion and the court’s focus is the due and proper administration of the deceased estate in the interests of the beneficiaries.

Reasons why a court may remove an executor

The court may remove an executor where circumstances arise which satisfy the court that the due and proper administration of an estate has been put in jeopardy or has been prevented by the executor or by reason of other factors which establish the executor is not a fit and proper person to carry out the executorial duties.

This will depend upon the facts of the particular case. An executor who has been guilty of inexcusable delay, one who otherwise impedes the due administration of the estate, or who flatly refuses to do something necessary for the estate administration without sufficient reason may be removed. (For more information, please see What exactly do executors of wills do? and How do you choose an executor for your will? – the horror story edition.)

Breakdown of relationship between co-executors

A breakdown of the working relationship between co-executors, frustrating the process of administration of the estate, may also justify the removal of an executor, as may the existence of an actual, or potential, conflict of interest.

In the case of Wise v Barry, the court accepted that the due and proper administration of the woman’s estate had been prevented by the de facto spouse. The court also considered that because the proceedings were commenced and the parties were not able to resolve the matter by themselves, there was no realistic expectation they would work together to finalise the estate.

As an executor, the de facto spouse was under an obligation not to prefer his own interests to the interests of the other beneficiaries.

Weaknesses in de facto spouse's family provision claim

In NSW a claim for a family provision order must be commenced within 12 months after a deceased person’s death. A claim cannot be made out of time unless the affected parties consent or otherwise without sufficient cause being shown for the delay.

In Wise v Barry, the court considered the de facto spouse did not show sufficient cause because, among other things, he made the claim almost six years out of time and because he had sought legal advice from a number of solicitors during that period.

The court considered both sons would suffer prejudice if the court allowed the claim and in any event, the de facto spouse’s claim was not likely to succeed.

Even though the sons’ financial circumstances were better than the de facto spouse’s, when considering the provision made for the de facto spouse under the will and the fact that he had remained in occupation at the property, rent free, for approximately seven years, the court could not be satisfied that he was not adequately and properly provided for by the woman’s will. (For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.)

Disproportionate legal costs in battle for modest estate

The deciding judge remarked at the outset of his judgment that “these are very unfortunate proceedings”. The proceedings took nearly 12 months to be determined and required a two day hearing. It was almost seven and a half years after the woman died by the time the case went to hearing.

Both parties were represented by lawyers and barristers. The son’s costs were estimated at $73,000 and the de facto spouse’s costs were estimated at $54,000. The combined costs therefore were estimated at $127,000.

The judge remarked that he tended to the view that perhaps, in this case, there had been both obstinacy and unreasonableness on both sides and that there had been a complete lack of proportionality between the legal costs and the value of the woman’s estate.

Co-executors, blended families and the need for careful estate planning

The case of Wise v Barry underscores the importance for willmakers of getting the executor selection right at the outset, to avoid conflict and unnecessary delays and costs.

In the context of blended families, the case also highlights the need for careful will and estate planning measures, such as provisions to deal appropriately with the family home in a way which balances competing interests and, where possible, maintains family harmony.

Preventative estate planning is key. Connecting with an experienced wills and estates lawyer for advice and assistance with your will drafting and estate planning well in advance of any problems could save you and your loved ones a whole lot of heartache and significant time and expense later on.

For more information, please see Is it a conflict of interest if the administrator of the estate is also a beneficiary?


NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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