Contesting a Will as Ex-Husband or Ex-Wife

Ex-Husbands and Ex-wives are Eligible Persons pursuant to section 57 of the Succession Act 2006. For the purpose of eligibility the ex-husband or ex-wife simply need to establish that they were married to the deceased at one time. This can be established by a Marriage Certificate.

Eligibility simply means that the ex-husband or ex-wife is a person who is eligible to contest the will.

Certain categories of eligible persons are required to overcome an additional hurdle before the Court is able to make an order disturbing the will. An ex-husband or ex-wife is one such category.

Ex-husbands or ex-wives are required by section 59 of the Succession Act to establish that there are factors which warrant the making of an order. This means that there must be circumstances which give the ex-husband or ex-wife a the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. For ex-husbands and ex-wives the closeness of the relationship with the deceased and whether there was a family law property settlement will be important considerations.

If the Court is satisfied there are factors which warrant the making of an order then the Court must determine whether the provision made for the ex-husband or ex-wife in the will (or if there was no will in accordance with the rules of intestacy) was inadequate. If the Court accepts such then the final stage is the determination of what amount, if any, should be paid to the ex-husband or ex-wife from the estate of the deceased person (in addition to the amount they are already entitled to under the terms of the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the ex-wife / ex-husband.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the ex-wife / ex-husband by the deceased before or after death.
• whether the ex-wife / ex-husband was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the ex-wife / ex-husband.

While ultimately each case turns on its own particular circumstances an ex-husband or ex-wife should ensure that their case is prepared thoroughly noting the number of hurdles to overcome.

If you are an executor of a deceased estate, or are an ex-husband or ex-wife who has been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, and at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.