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Is a former spouse entitled to contest a will? | A case study

Catherine Henry Lawyers
Catherine Henry Lawyers

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Contest a Will

Section 57(1)(d) of the Succession Act 2006 (NSW)[1] (‘the Act’) allows for a former spouse to make a family provision claim against an estate (in other words, contest a will). However, a former spouse must identify factors (past or present) that warrant making an application, as well as establishing the need for additional provision from the estate for the purposes of maintenance, education and advancement in life.[2]

When determining a former spouse’s eligibility to make a claim, the Court is to consider a range of factors as outlined in Section 60 of the Act.[3] These factors include (but not limited to):

  • The nature of the relationship between the former spouse and the deceased;[4]
  • The obligations and responsibilities owed by the deceased to the former spouse;[5]
  • The former spouse’s financial circumstances;[6]
  • Any disability suffered by the former spouse;[7]
  • Any provision made to the former spouse during the deceased’s lifetime.[8]

It is evident that there is not a direct entitlement for a former spouse to make an application, and the Court will exercise their discretion when determining the weight that should be applied to each consideration.

The recent decisions of Lodin v Lodin[9] sheds further light as to how Courts should approach family provision claims made by former spouses.

The factual circumstances of Lodin v Lodin were as follows:

  • The deceased was a doctor and had met the former spouse when she was a patient at his practice in 1984.
  • They had a daughter together born in 1986.
  • The former spouse and deceased married, and they commenced cohabitation in 1988.
  • The former spouse and the deceased separated in 1990, and eventually divorced in 1995.
  • Following separation, the former spouse made a complaint to the professional standards board on the basis that the deceased had relations with the former spouse who was initially his patient.
  • Family law property division proceedings were commenced in 1992, and it was ordered that the former spouse was to receive assets in the total of $164,500.00, representing 38% of the asset pool. The former spouse resumed cared for the daughter, and the deceased maintained his obligation with payment of child support.
  • In 1994, the former spouse commenced proceedings in the Common Law Division seeking damages relating to the deceased’s breach of his professional duties, however these proceedings were discontinued in 1998.
  • The former spouse was involved in motor vehicles accidents in 1997, 2000 and 2008 in which she received compensation. She had been in receipt of a disability pension since 2000 following the injuries sustained in that motor vehicle accident.
  • The deceased died in 2014 without a will, leaving an estate worth approximately $5,000,000.00 to his daughter.[10]

The former spouse made a family provision application against the estate. In first instance, Brereton J of the Supreme Court found in favour of the former spouse, ordering the estate to pay her a legacy of $750,000.00.[11] Bereton J provided the following reasons:

  • The deceased had a moral responsibility to provide testamentary provision to the former spouse.[12] It was considered unfair that the daughter would receive a large estate without any provision to the former spouse.[13]
  • The deceased’s conduct during and following separation contributed to psychological trauma suffered by the former spouse, and ultimately to her current financial position. [14]
  • The former spouse allowed the deceased to financially prosper by resuming care for their daughter.[15]

The decision of Brereton J was then overturned by Basten JA, White JA and Sackville JA of the Court of Appeal. [16]The reasons for the Court of Appeal’s decision was as follows:

  • The primary judge erred in finding that a moral responsibility existed on the basis that the estate was large, and the sole beneficiary was a member of the deceased’s family whom the former spouse had responsibility for.[17]
  • While it was alleged that the former spouses persecutory conduct was explained by a psychological condition caused by the deceased, there was no evidence to support this finding.[18]
  • The deceased and former spouse separated quite some time ago, and their relationship was short lived.
  • There was no evidence to suggest that the deceased’s conduct caused the former spouses current financial position.[19] The Family Court orders relating to property division were considered significantly relevant. The deceased substantially provided for the daughter’s maintenance and education, and he complied with his child support obligations. [20]
  • The Court also considered other unrelated factors that contributed to the former spouses’ financial position. These considerations included the former spouses’ prior motor vehicle accidents, and her decision to institute and maintain legal proceedings without benefit.[21]

While the decisions have explored the concept of ‘factors warranting the making of an application’ by a former spouse, there is still judicial uncertainty as to how the Courts are to approach such applications.

In late 2018, the High Court rejected the application for leave to appeal.

[1] Succession Act 2006 (NSW) s57(1)(d)   

[2] Succession Act 2006 (NSW) s59(1)(a)-(c)     

[3] Succession Act 2006 (NSW) s60(2)     

[4] Succession Act 2006 (NSW) s60(2)(a)   

[5] Succession Act 2006 (NSW) s60(2)(b)

[6] Succession Act 2006 (NSW) s60(2)(d)   

[7] Succession Act 2006 (NSW) s60(2)(f)   

[8] Succession Act 2006 (NSW) s60(2)(i)

[9] Lodin v Lodin [2017] NSWSC 10; Lodin v Lodin [2017] NSWCA 327.

[10] Lodin v Lodin [2017] NSWSC 10 [1]-[32].

[11] Lodin v Lodin [2017] NSWSC 10 [102].

[12] Lodin v Lodin [2017] NSWSC 10 [51]-[66], [99]

[13] Lodin v Lodin [2017] NSWSC 10 [86]-[87]

[14] Lodin v Lodin [2017] NSWSC 10 [81]-[85]

[15] Lodin v Lodin [2017] NSWSC 10 [86]

[16] Lodin v Lodin [2017] NSWCA 327 [174]

[17] Lodin v Lodin [2017] NSWCA 327 [141]-[145]

[18] Lodin v Lodin [2017] NSWCA 327 [146]-[160], [166]

[19] Lodin v Lodin [2017] NSWCA 327 [163]

[20] Lodin v Lodin [2017] NSWCA 327 [164]

[21] Lodin v Lodin [2017] NSWCA 327.

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