Balancing the wants of the widow against children’s entitlement

In the matter of Clarke v Clarke, a widow succeeded in her claim for family provision against the two children of the deceased.


The widow was the second spouse of the deceased.

The deceased had two children from a prior marriage. There were no children of the marriage.

It was a small estate. The main asset was the property in North Haven. The will provided a right of residence for the wife. At the time she vacated the property, it was to be sold, and the proceeds divided equally between the wife and the two children.

The deceased had spoken to his wife about his intentions over the years. No prior wills were put in evidence.

Main Asset Damaged

Floods damaged the property prior to the deceased’s death. It was not insured for flood damage. The damage was such that the deceased and his wife had to reside with one of their children. The wife continued to reside with that child for a couple of months after the deceased’s death.

There was no cash in the Estate to fix the property. It was unlivable. This left the widow receiving only a one third share of the deceased’s estate.

It was a small estate, worth only about $590,000 before any legal costs were deducted.

The wife sought the entire proceeds of sale and did not want to consider other options. She wanted to exclude the children. His Honour invited the wife to suggest other proposals to resolve the matter, however she declined to provide any alternative solutions.

The Court focused on whether proper and adequate provision had been made for the maintenance of the wife. It was recognised and accepted by the Court that it is a discretionary decision. Even if the Court had jurisdiction, the Court may choose not to make a family provision order.


In making the order for provision, the Court stated that a mere right of residence is usually inadequate provision for a widow. This is due to the possibility that the surviving spouse may need to move to alternate accommodation as they age.

The children tried to argue that the wife should not get any further provision as that meant the assets of the estate would not go to them, but would go where the wife directed in her will. The Court recognised it may be a factor, but not usually sufficient to result in further provision being refused.

However, the Court did not think it appropriate in this case to award the whole of the proceeds of sale to the widow (which is what she was seeking). The main reason was that it would defeat the testamentary freedom of the deceased to provide for his only two children, and the legitimate expectations of those children.

Hallen J ordered that she receive additional provision in the amount of $40,000, together with one third of the balance of the proceeds of sale. The remaining two thirds, whilst ultimately belonging to the children of the deceased, were to be provided to the widow as a secured loan, with interest, to enable her to purchase suitable accommodation. The widow must purchase the accommodation within 6 months of the order, otherwise the two thirds are to be immediately distributed to the beneficiaries.

Clarke v Clarke & Anor  [2022] NSWSC 1721