Is it possible for former spouses to contest your will after you die? It turns out that the answer is more unexpected than you might think.
The cost of separation can be taxing financially, temporally, mentally and physically. After this long and exhausting process, it can be difficult to get organised. However, it is important that you do get around to writing a new will. A new will may include a new spouse and/or children. It can also allow you to remove or reduce the amount of your ex-partner expects to benefit from your estate.
Whatever you write in your will, will contesting is still possible. It may be that your former spouse may be able to contest your will after your death and claim assets.
What Are The Eligibility Requirements for a Family Provision Claim?
In regards to will contesting, former spouses are eligible in Australia for a family provision claim if they feel that they have not been adequately provided for. According to Section 57 of the Succession Act 2006 (NSW), in order to make a family provision claim, a former spouse has to “identify factors (past or present) that warrant making an application, and establish the need for additional provision from the estate for the purposes of maintenance, education and advancement in life.”
The Court will consider a variety of factors when determining the validity of a family provision claim in relation to a former spouse. Some of these factor may include: the type of relationship that the deceased and former spouse had, the responsibilities that the testator had unto the former partner at the time of death, the financial situation of the former spouse, disabilities that the former spouse has suffered and, finally, any provisions that were for the former spouse during the testator’s lifetime.
Example of a Former-Spouse Contesting A Will
The following is an example of will contesting. In 2014 the NSW Supreme Court allowed the former partner of a deceased man to contest the will that had ben arranged before his death.
In 2009 the man had drafted a will naming his spouse as the primary beneficiary of his estate. When he passed away in June 2011, she was left the majority of the estate, as well as $1 million dollars left in trusts for each of the deceased man’s two sons. His former spouse did not receive anything in the will.
The former spouse believed she was entitled to part of the estate. She made clear that she did not want to claim any of the trusts left to the children or to their previous home.
The marriage had fallen part in 1995 when neither party could come to an arrangement over where they would be able to settle. His second marriage was years later in 2009 at the time the will was rewritten.
The former spouse made the case that she expected her and her ex-partner to get back together at some point and that the deceased had made statements to herself and her father that he would “look after her”.
Evidence was collected and shown in court. The former spouse also gave the widow time to organise her affairs before putting the claim forward. Both of these factors influenced the judge’s decision to award a family provision in the case.
A legacy sum of $200,000 and legal expenses, paid for from the estate, were awarded to the former spouse. This one example where a court case has been successfully won on behalf of a former spouse contesting a will.
Australian Law allows for a former spouse to contest a will, even if the relationship was ended long ago. Will contesting can be a difficult process. Any person living in the household at the time the deceased passed away, or were dependent in some form or another on the deceased, also have the right to contest a will. The grounds for contesting a will in these circumstances is founded in the Family Provision Act, which looks to protect the interest of family members whom may otherwise be excluded from an unfair will.
An ex-partner from a de-facto relationship is also eligible to contest a will by making an inheritance dispute if they feel unfairly left out of a will. The Courts may deem these claims eligible if they believe there was a moral obligation for the deceased to have provided for an individual.
It is important to seek professional assistance when preparing your will, so as to avoid any complications that may arise or result in a contesting of a will. If you believe you have been treated unfairly, or not represented properly, in a will make sure to contact the proper legal services.