Can a former partner contest a will?

Published 07 Apr 2014

While you may believe moral obligation to a partner ends once the divorce is finalised, did you know your ex-spouse is still eligible to contest a will?

NSW law allows the former husband or wife of the deceased person to contest a will. Additionally, any person who was a member of the same household of the deceased at any time, and was wholly or partly dependent on the deceased person during that period, is offered the same rights.

This means that even an ex-partner from a de facto relationship may be able to make inheritance disputes is they believe they have not been treated fairly in the document.

Regardless of how long ago the relationship ended, a former spouse contesting a will may be offered compensation if the Court agrees there was a moral obligation for the deceased to have provided for the individual.

Ex-wife contests the will of her former husband

On March 25, the NSW Supreme Court saw this option in action when an American woman decided to contest the will of her former spouse, an Australian.

When the deceased passed in June 2011, he left a will drafted in September 2009 that named his widow as the main beneficiary. Additionally, trusts of $1 million had been left to each of his two sons. The will made no provisions for the ex-wife.

While the ex-spouse believed she deserved a slice of the deceased’s estate, she expressly disclaimed any rights to the boys’ trust funds and the matrimonial home included in the estate.

The deceased had been married twice in his life, with his previous marriage ending in divorce in 1995 due to an unwillingness for either party to settle in the other’s home country. His second marriage began in 2009 and ended with his death in 2011.

In the plaintiff’s case for financial provisions, she claimed that despite her divorce, she had always believed she and the deceased would eventually end up back together. Additionally, she told the Court that her ex-husband had made statements to her and her father to the effect he would “look after her”.

Due to reasonable evidence collected in court, and the fact the plaintiff respectfully gave the widow time to get her affairs in order before making her claim, the judge decided her family provision claim was valid.

The Supreme Court ordered that the ex-spouse has been awarded a legacy sum of $200,000 and her legal expenses be paid out of the deceased estate.

If you believe you have been unfairly treated in an ex-partner’s will, a contesting wills lawyer at Gerard Malouf & Partners can help.

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