Can an ex-spouse expect to successfully make a claim on their former partner’s estate?

The short answer to the question as to whether a former spouse can make a successful family provision claim is, as is often the case, it depends.

In this blog, we shall consider two cases involving former spouses who made financial provision claims against the estate of their ex-partners with different outcomes.

The effect of separation and divorce on a Will 

In Australia, divorce (though not separation) revokes any provision in a Will for a former spouse unless the Will is clear that the provision is to remain irrespective of the divorce. It also negates any appointment of the spouse as executor, guardian or trustee. Divorce, however, is not necessarily fatal to the prospects of a family provision claim by an ex-spouse.

 Financial Provision Claims by former spouses 

In Australia, the law places an obligation on a Will-maker to make adequate provision for certain ‘eligible’ persons.  In NSW, an ex-spouse is able to contest a Will successfully if they can satisfy the Court that there are ‘factors warranting the making of an application’ and the deceased’s Will did not make adequate provision for their ‘proper maintenance, education, or advancement in life.’

Case Study 1: Brindley v Wade (No2) [2020] NSWSC 882

In this case a former wife made a family provision claim against her deceased ex-husband’s estate which was valued at $460000.

She was able to establish that she was an eligible person but then had to satisfy the Court that there were factors warranting her application. The factors she relied on largely concerned what she did not know about her husband at the time of their divorce settlement. These factors were:

(i)she claimed that the deceased had not disclosed the seriousness of his brain tumour during the divorce settlement process. Had she known the extent of the illness she claimed she would not have accepted the terms of the divorce;

(ii) she also claimed that an impending inheritance had not been disclosed to her during the divorce process which would again have led her not to have accepted the settlement that she did.

The Court rejected the application. In essence, it said that once the settlement had been made there was no longer an obligation to ‘make any testamentary provision for the other’s maintenance or advancement in life’.

Case Study 2: Stockwell v Beaumont: O’Donnell v Beaumont [2019] NSWSC 1811

This case involved a family provision claim against an estate which had all been left to the deceased’s youngest daughter. A claim (along with a separate one by another daughter) was brought by the deceased’s former spouse (though not the mother of his children) Margaret O’Donnell. Graham Stockwell had died in 2017 aged 79. He was married to Margaret from 1989 to 1999. She was 62 at the time of the hearing and in poor health, suffering from high blood pressure.

 There was no dispute that the youngest daughter was entitled to the majority of the estate but the Court accepted that the size of the estate (S1.077m after legal costs) warranted some provision for the two claimants. In Margaret’s case the Court accepted the factors warranting her application were the low settlement and his assurances of a legacy in his Will. On divorce she had not received a formal settlement but received $22000 and cancellation of a car loan of $8000. Her husband had apparently told her that she had been left $300000 in his Will though there was no written evidence of this. The Court found that the sum she received was ‘likely to be considerably less than she would have received in a family law settlement’ after 10 years of marriage.

The former spouse’s claim was successful in that she received $150000 which was more than enough to pay off her mortgage and a small buffer for contingencies.  The Court did note that a former spouse has only a small prospect of a successful claim unless they were receiving financial support from the deceased before they passed away.

What factors do the Courts consider?

The Courts will take into consideration a number of factors to decide whether there is any moral claim by a former spouse that needs to be provided for. These factors include:

- the nature and duration of the relationship between the former partners  including whether they maintained an ongoing relationship after the end of the marriage;

- whether there are any obligations to the ex-spouse such as being legally obliged to financially support them;

- the contribution made to the deceased’s estate or welfare;

- the former spouse’s age and physical or mental capacity;

- any benefits the spouse has received from the deceased during their lifetime.

A claim may also be considered more favourably where the parties failed to come to a property settlement when the relationship ended.

If a couple had reached a property settlement and then maintained separate financial arrangements, the Court is unlikely to find in favour of a claim.

What this means

 Just because an ex-spouse is eligible to make a claim does not mean they will be successful in making a claim from the deceased’s estate. It is at the discretion of the Court as to whether or not an eligible applicant will be provided, or further provided, from a deceased person’s estate. The Court will consider whether the former spouse has a moral right to any or further provision based on the specific circumstances of the case.

Not all claims can be successful so it is important to seek advice from an expert in succession law as soon as possible. The timetable within which to exercise your rights is limited. In NSW the deadline to file a family provision claim is 12 months after the deceased’s death.

Contact our Will Contest Lawyers based in Sydney, NSW

If you feel you have been unreasonably left out of a Will or inadequately provided for, contact the experts at Szabo & Associates Solicitors. Please contact us on 02 9281 5088 or complete the online contact form.