Who gets priority in a Wills Variation action – minor children or the second wife?

  • This question has not been settled – the answer may depend on the financial resources each has
  • The testator owes a legal duty to both the current wife and the minor children
  • If the estate is large enough, both groups should be provided for

There is surprisingly little case law on this question, given how many second marriages there are.

In Morphy v. Mohr the testator had a 14 year old daughter.  He had remarried.  His wife was 48 when he died, in poor health and unable to work.  The will left his daughter $2,500.  He felt his wife was a poor money manager, so he left the rest of his $320,000 estate to his wife as a life estate.  The trustees had the power to spend both interest and capital to support the wife. 

The testator almost cut his daughter out of the will because he blamed her for alienating herself from him, and he thought she was well provided for by her mother.  The trial judge decided that he was wrong on both counts, so his reasons were not legally valid.  He had failed to make adequate provision for the proper maintenance and support of his dependent child.

However, the judge then analysed the case on the basis that there was a contest between the moral duty owed to the daughter and the legal duty owed to the wife.  Given the size of the estate, he felt that a large gift to the daughter would imperil the wife’s survival.  He increased the daughter’s gift to $25,000 which he felt would provide adequate maintenance and support to her during the remaining years of her minority.

While this may have been the right outcome on the facts of this case, we believe the judge erred in his analysis.  The testator owed a legal duty to both his minor daughter and his wife.

Blended families can create difficult situations, but we can help.  Contact us.

Read the case:  Morphy v. Mohr

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