Contesting a Will as Husband or Wife

Husbands and wives are Eligible Persons pursuant to section 57 of the Succession Act 2006. For the purpose of eligibility the husband or wife simply need to establish that they were married to the deceased as at the date of death. This is established by Marriage Certificate and declaration that the deceased person had not divorced the application prior to death.

Eligibility does not mean that the widow/er will be successful in contesting the will and simply allows the claim to be commenced in the first place, provided the application is made within 12 months from the date of death.

The success of a claim by a husband or wife will depend on whether the Court accepts that the provision made for the husband or 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 Court must determine what amount, if any, should be paid to the husband or 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 wife / husband.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the wife / husband by the deceased before or after death.
• whether the wife / 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 wife / husband.

While ultimately each case turns on its own particular circumstances a husband or wife will often have a high moral claim to the estate of the deceased person, and as such a strong argument to contest the will. 

If you are an executor of a deceased estate, or are a husband or 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.