The wife of the deceased spent the money before the testator died – can anything be done?

  • Probably not.  How one spouse spends their relatively modest income will not be considered in a wills variation action.

In this case the second wife was the sole beneficiary of the estate.  She said that the testator’s long illness had used up the estate.  The only asset of significance was the family home, which passed to her outside the estate because it was held in joint tenancy.

A daughter from the first marriage sued, claiming that there should be lots of money in the estate.  She claimed that because the deceased had been disabled by his stroke, the second wife was in a fiduciary position and had a duty to account for the inheritance and pension income received by the deceased over the years.

The judge rejected this and said it was fundamentally misconceived as part of an action to vary a will, which deals with the distribution of estates that actually exist at the time of death.  However, he did state that this claim might work in a different kind of action.

If you need help in determining if there is a claim, we can help.  Contact us.

Read the case:  Kurmis v. Zilinski