The idea of a life estate

The Courts recognise that when a spouse dies, it is not always enough for the family home to be left to the surviving spouse by way of a life estate.

The idea of a life estate – the right to occupy and use the property during one’s life time – meets with difficulties, particularly in this modern world where people are living longer and more often requiring alternative accommodation in their later years.

A “Crisp order”, like the kind made by Justice Holland in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported) deals with this situation. Generally speaking, a Crisp order provides a spouse with not only a life estate in the property but also the rights to the property itself. This means a spouse can sell the property should the need arise for them to secure more appropriate accommodation, such as in a retirement village or nursing home. It aims to give the spouse more flexibility in their accommodation options and confers upon them a ‘portable’ life estate.

Last week, the NSW Supreme Court decided in Paradisis v Kekatos as executor of the estate of the Late John Paradisis [2016] NSWSC 220 that a Crisp order should apply. Justice McDougall found that the Plaintiff, who was the spouse of the deceased for 28 years, had been left without adequate provision for proper maintenance and advancement in life through the provision of a life estate. He made a Crisp order with a monetary cap of $700,000 to ensure “changing circumstances in life can be met with a degree of support for exigencies which we all know may occur but which at present are no more than possibilities.”