A deceased may feel that their obligation to their spouse ends when their divorce is finalised but that is not always true as an ex spouse is an eligible person to contest a will. A former de facto partner is also eligible person if they lived in the same household as the testator at any point and was financially dependent on the deceased.
The spouse and children of a deceased spouse have the right to make a claim from the estate of the deceased. But also a FORMER spouse may have a right and this applies to both former married and de facto partners.
However, just because an ex spouse is eligible to make a claim does not mean they will ultimately receive provision from the deceased estate. Each claim will be assessed on the specific circumstances of the case.
In assessing the claim of an ex spouse the Court will have regard to the length of the marriage/relationship, any contribution that the ex spouse made to the deceased estate and the ex spouse`s financial and personal circumstances. Importantly also, the court will take into account any evidence of the deceased`s intentions towards their ex spouse.
In the past the Supreme Court of NSW has shown a willingness to recognise an ex spouse`s claim if they were in an ongoing relationship with the deceased. Also, the Court has looked favourably on an ex spouse`s claim when there was no official Family Law property settlement at the end of the marriage. In one case the Court found that the claimant was entitled to provision even though she lived apart from her former husband because there had been no final division of assets at the time of the divorce. The Court is less likely to recognise a claim from an ex spouse where there was a full and fair division of assets at the end of the relationship and the parties kept their finances separate.
In yet a further case in 2019 the claimant remained on good terms with her ex spouse, and they were considering a reconciliation before his death. The former couple never fully separated their finances and the claimant asserted that she was financially dependent on the deceased at the time of his death. The claimant was awarded half of the estate.
If you wish to know your rights and where you stand please feel free to contact MICHAEL NOWLAND or PETER MOORE of Hulin Chadwick, Solicitors on 4934 6899 or book an appointment here to have a free consultation.
Most importantly, if you are of a mind to contest a will please remember that there is a 12 months Limitation period from the date of death of the deceased to commence legal proceedings. You should obtain legal advice without delay.