By Richard McCullagh -
Snapshot
- A family law property settlement can be used to pursue a de facto claim for family provision that might otherwise not be available to stepchildren.
- A biological child of the first spouse to die in a blended family may be motivated to pursue a family provision claim if they are not provided for on the death of the surviving spouse.
Two unrelated cases by the name of Stanford v Stanford illustrate the intersection of family, succession, and arguably, elder law. The cases are Stanford v Stanford [2012] HCA 52 (‘Stanford 2012’) and Stanford v Stanford [2021] NSWSC 1469 (‘Stanford 2021’). The facts of the cases are similar in that they both involved elderly blended families, with the spouses being in their late 80s and mid 70s respectively. In each case, the surviving spouse would have been forced to move out of their matrimonial home had the claim been successful.
Stanford 2012
Stanford 2012 involved an application for the division of matrimonial property under s 79 of the Family Law Act 1975 (Cth) (‘FLA’). It was used as a collateral strategy to pre-empt the lack of eligibility on the part of an elderly spouse’s biological children to make a family provision claim (‘FPC’) against their stepfather. The intention was to effect an inter vivos transfer of half the stepfather’s assets to their mother. This appears to have been driven by the mother’s offspring lest she predecease her second husband.
Stanford 2021
In Stanford 2021, the couple had made a contract for mutual wills leaving all their property to each other and, on the death of the survivor, to all their respective children in equal shares. The husband predeceased the wife, and his biological son promptly brought a FPC against his estate. As the bulk of the assets were held jointly with his second wife, designation of part of this as notional estate would be necessary to fund the order sought.
