So can a former spouse contest your will? You might be surprised by the answer and our client’s fascinating High Court challenge.
After the time, money and effort it can take to separate from your previous spouse, an important next step is writing a new will. Your new will might include a new spouse and additional children. It may also reduce or remove your former spouse’s benefit from your estate.
But regardless of your written intention, your previous spouse may still be eligible to contest your will and make a claim on your assets after you pass away.
Section 57 of the Succession Act 2006 (NSW) allows for a former spouse to make a family provision claim against an estate. In other words, they can contest a will. To do this a former spouse must:
- identify factors (past or present) that warrant making an application
- establish the need for additional provision from the estate for the purposes of maintenance, education and advancement in life.
When determining if a former spouse is eligible to make a claim, the court considers a range of factors including:
- the nature of the relationship between the former spouse and the deceased
- the obligations and responsibilities owed by the deceased to the former spouse
- the former spouse’s financial circumstances
- any disability suffered by the former spouse
- any provision made to the former spouse during the deceased’s lifetime.
In a recent matter, our client’s claim against their former spouse’s estate was successful given they had a child together and the child was in the care of our client — at her own financial cost. However, this decision was later overturned in the Court of Appeal.
This fascinating case of Lodin versus Lodin, is now set to be heard again in the High Court as lawyers and divorcees from all over the country await the outcome. For more details on this matter, you can read our case notes here.
While the decisions to date 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 these applications.
The High Court’s findings will certainly help determine a former spouse’s entitlement when it comes to making a family provision claim against an estate. Of course, we’ll update date you as the case progresses.
To speak to a member of our Wills and Estates team about writing or contesting a will, or other estate litigation, contact us today on 02 4929 3995.