Dark v Dark

In the case of Dark v Dark, the plaintiff, the widow of the deceased, sought family provision from the estate of her deceased husband. The deceased's will made no provision for the plaintiff, instead providing for their three children to inherit the majority of the estate upon reaching the age of 25 years. The estate predominantly consisted of proceeds from the sale of a property sold to the deceased by his mother at a substantial undervalue. The plaintiff argued that the will did not make adequate and proper provision for her, as she had no financial buffer for adverse contingencies and was responsible for two of the deceased’s children. Additionally, the deceased's moral obligation to provide a stable financial environment for his children was not fulfilled.

The court was required to determine whether the release of the plaintiff’s right to apply for a family provision order should be approved. This involved assessing whether the release was advantageous to the plaintiff and whether it was fair and reasonable, considering she did not receive independent advice before signing the agreement. The court also needed to decide if the plaintiff was coerced into giving the release. Furthermore, the court had to evaluate whether adequate and proper provision was made in the deceased's will for the plaintiff, given her financial responsibilities and the deceased's moral obligations.

The court found that the release of the plaintiff’s right to apply for a family provision order was not advantageous to her and was not fair and reasonable. The plaintiff had not received informative independent advice before signing the agreement and was coerced into giving the release. Consequently, the release was not approved. The court also determined that adequate and proper provision was not made in the will for the plaintiff. Given her financial responsibilities and the deceased's moral obligations, the court found that the will did not provide a stable financial environment for the children.

As a result, the court ordered that the deceased's estate should provide for the plaintiff out of the estate, ensuring she had adequate and proper provision.