Penfold v Perpetual Trustee

In the matter of Penfold v Perpetual Trustee, the former spouse sought provision out of the estate of her former husband, who died in 1999. The parties were married in 1957 and divorced in 1968. The former spouse argued that she should be provided for under section 9(1) of the Family Provision Act. The central legal issues before the court were whether the former spouse was a person who would be considered a natural object of testamentary recognition, and if so, whether the deceased should have made provision for her in his will, considering the circumstances of the marriage and divorce. The court also had to determine the validity of a clause in the will that prevented the remaindermen from taking their interest in possession until the death, burial, or cremation of their mother.

The court considered the nature of the relationship between the former spouse and the deceased at the time of his death, noting that there was little to no relationship. The court examined the statutory criteria under section 9(1) of the Family Provision Act, which requires the court to consider whether the former spouse is a person who would be regarded as a natural object of testamentary recognition. In light of the circumstances, including the length of the marriage, the duration since the divorce, and the lack of any ongoing relationship, the court held that the former spouse was not a natural object of testamentary recognition. Consequently, the former spouse was not entitled to a provision from the estate. The court also upheld the clause in the will that prevented the remaindermen from taking their interest until the death, burial, or cremation of their mother, finding that it did not contravene public policy.

The court concluded that the former spouse was not entitled to any provision from the estate of her former husband. The clause in the will that delayed the remaindermen's interest was deemed valid and not against public policy. The court's decision was based on the absence of a continuing relationship between the former spouse and the deceased, and the lack of any obligation on the part of the deceased to provide for her under the Family Provision Act. The court's ruling ensured that the deceased's testamentary intentions were respected, and no provision was made to the former spouse.