In a recent Victorian Supreme Court case, Gigliotti v Gigliotti [2002] VSC 279, a widow has been successful in converting a life tenancy in the family home left to her by her late husband into a monetary sum, thereby enabling her to live in another location of her own choosing.

The widow and the deceased married in May 1990. At the time of the marriage, Mr Gigliotti was nearly 75 years old and Mrs Gigliotti was nearly 65 years old. Both of them had been widowed and had a grown up family as a result of an earlier marriage. Two days before their marriage, Mr and Mrs Gigliotti executed a pre-nuptial agreement. The terms of the agreement reflected Mr Gigliotti’s desire to provide for his wife-to-be during her lifetime and, at the same time, preserve his inheritance for his children.

Mr Gigliotti died in April 2000 and left a will dated 29 January 2000. In the will, Mrs Gigliotti was given a personal right of residence in the home they shared in Merlynston as well as a life interest in the household furniture and the deceased’s collection of tools. After the life tenancy, the home, furniture and tools were to pass to the deceased’s three sons in different shares and the residue of the estate was to be distributed in four shares, one of those shares to be distributed to Mrs Gigliotti.
The value of the estate left by the deceased was modest. It consisted of the family home in Merlynston valued at $260,000, household effects valued at $5000, and cash totalling nearly $3000.

Mrs Gigliotti made a claim against the estate claiming that adequate provision had not been made for her under her husband’s will. The problem was that Mrs Gigliotti did not wish to continue to live in Merlynston near the deceased’s family, but wanted to live in another country town to be closer to her own family. Further, Mrs Gigliotti had no assets of her own and was living on an aged pension. As it would not be possible to re-house Mrs Gigliotti without selling the family home, the issue before the court was whether the executor of the estate was required to sell the home to further provide for the widow or whether, in refusing to take up residence in the home, the life tenancy had simply been terminated.

The court decided that, in determining whether adequate provision had been made for Mrs Gigliotti, consideration had to be given not only to her material needs but also her reasonable social and domestic requirements. As the widow was elderly and spoke little English, it was reasonable that she would want to live close to her own kin and not those of her deceased’s husband whom she did not feel as close to.

The court also decided that Mrs. Gigliotti was not entitled to outright ownership of the family home, as it was clearly the intention of the deceased that his children would benefit from his estate after Mrs Gigliotti was looked after during her lifetime.

The court granted Mrs Gigliotti a life interest in the home. It further stated that, should she desire not to continue living in the home, then the property should be sold and the sum of $150,000 applied to the purchase of another property to be held by Mrs Gigliotti as a life interest. Mrs Gigliotti was also to receive a further sum of $50,000 representing a “nest egg” for her use to enable her to maintain the house, pay all necessary outgoings, relocation costs and any other expenses during her lifetime.

This decision illustrates that, while a court will give effect to the terms of a will to fulfill the wishes of the deceased, it is prepared to look behind the gifts made and make alternative provision when necessary to avoid undue hardship to the proposed beneficiary.