Introduction: Understanding Ex-Spouse Will Contests in NSW

In New South Wales, there’s an interesting tidbit about divorce and wills. Even after splitting up, an ex can still have a crack at contesting your will. For anyone sorting out their estate or handling someone’s affairs after they’ve passed, this part of the law is worth knowing. The Succession Act 2006 spells it out. An ex-spouse might be in the running to make a claim, as long as they’ve got a solid case to present to the Supreme Court of NSW. Curious about when an ex can have a go at a will and try to claim from an estate? Keep reading to dive into this surprising aspect of wills in NSW.

Process and Requirements for Former Spouses Contesting a Will in NSW

Eligibility of a Former Spouse to Contest a Will in NSW

Under section 57(1)(d) of the Succession Act 2006 (NSW), a former spouse of the deceased is recognised as an eligible person to contest a will. To qualify, a former spouse must satisfy the Supreme Court of NSW that there are “factors warranting the making of an application.” A former spouse is legally defined as someone who was married to the deceased but had finalised their divorce before the time of the deceased’s death. It is important to note that separation alone, without a decree absolute, does not classify a person as a former spouse in the eyes of the law. Additionally, the definition under the Succession Act 2006 (NSW) is specific to divorced individuals and does not extend to former de facto partners whose relationships ended prior to the deceased’s death:

• Finalised Divorce: Required for classification.
• Separation Without Decree Absolute: Does not qualify.
• Excludes Former De Facto Partners: The definition is limited to divorced individuals.

Process for Contesting a Will as an Ex-Spouse in NSW

Establishing eligibility is only the initial step in contesting a will. A former spouse must demonstrate that the deceased’s will did not make adequate provision for their proper maintenance, education, or advancement in life. This process involves several key stages:

• Demonstrating Eligibility: The former spouse must prove to the court that they are an “eligible person” under the Succession Act 2006 (NSW) by showing that there are “factors warranting the making of an application.”
• Satisfying the Court Regarding Inadequate Provision: Even after establishing eligibility, the former spouse must convince the court that the will did not make adequate provision for their needs.
• Court Consideration of Factors: The court will evaluate various aspects to determine whether adequate provision was made. These factors include the financial position of the former spouse, the size of the deceased’s estate, and the nature of the relationship between the former spouse and the deceased.

Time Constraints for Contesting a Will in NSW as a Former Spouse

In NSW, strict time limits apply for contesting a will. According to the Succession Act 2006 (NSW), a Family Provision Claim must be filed with the Supreme Court of NSW within twelve months from the date of the testator’s death. It is critical for any former spouse considering a contest to seek legal advice from wills and estate lawyers or inheritance lawyers as soon as possible. Filing outside the specified timeframe is only permitted if the claimant can provide sufficient justification for the delay and obtain the court’s permission for a late application.

Precluding Claims Through a Mutual Deed of Release

During the testator’s lifetime, steps can be taken to potentially preclude future claims. One effective mechanism is a mutual deed of release, which is a formal agreement between divorcing parties agreeing not to make any future claims against each other’s estates. This mutual deed of release:

• Requires approval from the Supreme Court to be binding
• Is typically approved when there has been a finalised property settlement
• Depends on both parties being financially independent, indicating an equitable separation of assets and future liabilities

It is important to note that the deed is not binding until the court provides its formal approval.

Factors Considered by NSW Courts in Ex-Spouse Will Contests and Case Studies

Financial Position and Needs: Stockwell v Beaumont; O’Donnell v Beaumont (2019) NSWSC 1811

When a former spouse contests a will in NSW, the court carefully evaluates their financial position and needs. This assessment includes determining whether the deceased had an obligation to provide financial support to their former spouse. For example, if the former spouse was receiving maintenance payments or was financially dependent on the deceased, these factors can significantly influence their claim. In the case of Stockwell v Beaumont; O’Donnell v Beaumont (2019) NSWSC 1811, the court examined how a modest divorce settlement can impact a family provision claim. Here, the former spouse, Ms. O’Donnell, received a property settlement of approximately $30,000 after a 10-year marriage. The court found that this amount was considerably less than what she might have received in a family law settlement, which justified her application. Ultimately, Ms. O’Donnell’s claim against the deceased estate was successful, and she was awarded $150,000.

Nature of Relationship and Length of Marriage: Lodin v Lodin (2017) NSWCA 327

The nature of the relationship and the length of the marriage between the deceased and the former spouse are crucial factors for the court. A long marriage where the couple maintained some level of connection post-separation may be viewed more favourably compared to a short marriage with decades of separation and no contact. Additionally, factors such as the degree of civility between the parties and any ongoing shared responsibilities, such as co-parenting, can influence the court’s assessment. In Lodin v Lodin (2017) NSWCA 327, the court addressed how a short marriage and prolonged separation can weaken a former spouse’s claim. The former spouse initially successfully claimed $750,000 from her ex-husband’s $5.4 million estate; however, this decision was overturned on appeal. The Court of Appeal highlighted several factors that worked against her claim:

• A 25-year separation
• A relationship lasting less than six years
• A marriage that lasted only 19 months
• A finalised financial settlement completed 25 years earlier

The court concluded that there were no factors warranting the application, despite the former spouse demonstrating financial need, as it was not linked to the deceased’s conduct.

Impact of Property Settlement: Brindley v Wade (No 2) (2020) NSWSC 882

A prior property settlement can significantly affect a former spouse’s family provision claim. If a former spouse has already received a favourable property settlement through Family Court proceedings, the Supreme Court is less likely to find merit in a subsequent will contest. While a property settlement does not automatically prevent a claim, it presents a substantial hurdle for the former spouse to overcome. The case of Brindley v Wade (No 2) (2020) NSWSC 882 exemplifies the impact of property settlement on such claims. In this instance, a former spouse’s family provision claim against her ex-husband’s $460,000 estate was unsuccessful. She argued that the divorce settlement was inadequate due to the deceased’s non-disclosure of his serious illness and an anticipated inheritance. However, the court dismissed her claim, stating that once property settlement orders are finalised, any obligation for testamentary provision ends. Consequently, the court found no reason for the deceased to have further testamentary obligations towards his former spouse after the final property settlement.

Conclusion

For divorced individuals in NSW, it is important to understand that an ex-spouse can contest your will if they demonstrate valid grounds and prove inadequate provision, even after divorce and property settlement. To avoid potential disputes and ensure your testamentary wishes are respected, it is crucial to seek legal advice and update your will after a divorce. Estate executors facing a claim from a former spouse should be aware of the complexities of these will contests and the factors NSW courts consider. For expert guidance through these intricate matters, contact PBL Lawyers to speak with our experienced estate planning lawyers and protect the estate.

Frequently Asked Questions