Can An Ex-Spouse Contest A Will?
In Australia, each jurisdiction has a statutory list of persons who are eligible to contest the will of a deceased person. There are some commonalities in eligibility across the states and territories: for example, the deceased’s spouse and children always have to right to dispute the distribution of the estate. One surprising fact is that a former spouse of the deceased also has the right to contest the will in many jurisdictions. If a former spouse feels that they are entitled to provision and the testator failed to make adequate provision for their ongoing welfare, they may choose to contest the will. This article outlines the provision for an ex-spouse to contest a will in Australia.
Effect of Separation And Divorce On The Will
In Australia, divorce revokes any provision in a will for a former spouse and any appointment as executor, trustee or guardian. The only exception to this is if it is made clear in the will itself that the deceased intended the provision to stand regardless of the divorce. Separation, on the other hand, has no effect on a will. This means that if the testator has failed to update the document to reflect the separation, and they die before the divorce is final, their separated spouse may still inherit.
Can An Ex-Spouse Contest A Will?
An ex-spouse can contest a will without condition in Queensland, South Australia and New South Wales. In Victoria, an ex-spouse can contest a will if they were prevented from finalising a Family Law proceeding against the deceased because he or she passed away. In Western Australia, Tasmania and the Northern Territory, a former spouse can contest a will if they were entitled to or already receiving maintenance from the deceased.
In every state and territory, a claimant needs to act swiftly, as different time limits apply to contesting a will according to the jurisdiction.
Assessment Of Claim
The courts will consider the claim in light of a number of factors, including the size of the estate, the length of the relationship, the contribution that the ex-spouse made to the deceased estate and the claimant’s financial need, state of health, and character and conduct. It will be of interest to the court if there is any evidence that pertains to the deceased’s intentions towards the claimant. The court will consider the claim against the competing obligations of other claimants and the beneficiaries of the estate.
Previously, ex-spouses have a greater chance of successfully making a claim when they can establish one or more crucial factors. Firstly, the plaintiff can prove an ongoing relationship with the deceased, such as through the provision of ongoing emotional or financial support. In Milewski v Holben , the Supreme Court of NSW made an order for provision for a plaintiff partly because she had maintained a relationship with her former spouse and he had indicated his intention to make testamentary provision for her.
Secondly, the courts have looked more favourably on cases where there was no formal property settlement following the dissolution of the relationship. In Scott v Scott , the Supreme Court of NSW found that, although the plaintiff was living separately from her deceased former husband, there was no final division of assets.
If the ex-spouse has already received a fair settlement, the court is less likely to consider their claim to have merit. While it may still be technically possible for an ex-spouse to contest a will after a property settlement, it will be difficult for the claimant to prove that they were financially dependent on their former partner at the time of their death.
Recent Case Study
In 2019, the Supreme Court of NSW considered an application from a claimant against the estate of her former spouse. In Stockwell v Beaumont; O’Donnell v Beaumont , the claimant was the former spouse of the deceased. She remained on friendly terms with her ex-spouse, they never fully separated their finances, and there was a possibility of reconciliation at the time of the testator’s death. The court found merit in the claimant’s assertion that she was eligible for provision under the will because she was financially dependent on the deceased. The court emphasised that an ex-spouse typically has little prospect of successfully contesting a will, but may be successful in the very limited circumstances that the claimant was receiving ongoing financial support from the testator before their death. In this case, the court awarded the plaintiff half of the estate but underlined the fact that each case turns on its own facts.
The contested wills team at Armstrong Legal is here to answer any questions you have about your eligibility to contest your ex-spouse’s will. With their extensive experience with litigating will disputes, the team can also give you a realistic idea of your chances of success. Contact or call 1300 038 223 and you will find that the team at Armstrong Legal are the right solicitors for you.