Will a pre-nuptial agreement affect the outcome of a Wills Variation action?

  • In many cases, yes
  • Pre-nuptial agreements made before second marriages, with the objective of having the spouses’ separate estates go to their own children, will usually defeat a surviving spouse’s claim

In Howard v. Howard Estate the husband and wife married when he was 67 and she was 65.  Their assets had been acquired before the marriage, and they entered into a pre-nuptial agreement that on death each of their estates would go to their own children from their previous marriages.  Five years later the husband died.  The wife challenged the will, which left her nothing.

The trial judge upheld the will.  He noted a dozen important factors, including that the wife was and is financially independent, her estate was larger than his, if they had divorced she would not have received property or spousal support from him, she had not contributed to his estate, it was not a long marriage, there was little merger of their lives in that they had maintained separate finances and even houses, living alone in separate towns for good periods of time, a good part of his estate had come from his first wife, and both wished their estate to go to their own children. 

The judge said that it was not just and equitable that the wife sought to vary the will when she was party to the prenuptial agreement and her will provided that if she died first, his children would receive nothing.  There was nothing unfair in the pre-nuptial agreement.

The Court of Appeal said that in many cases a court will make an award for the surviving spouse, if only to provide some additional income to the survivor during her life.  However, this was an unusual case for several reasons — the late age at which the parties married and the resulting shortness of the marriage; the fact that they did not become an economic unit and enter into the relationship of mutual benefit and contribution that usually comes with marriage; the fact that her estate was larger than his by some $60,000; and last, the fact that having signed the agreement and made their wills, neither can have had an expectation that on death the other’s estate would “be there” for the survivor.  The appeal was dismissed and the wife got nothing.

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Read the case:  Howard v. Howard Estate