All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will on the basis that they have not been left adequate provision by the testator.
If a family provision claim is successful, the Court can order an appropriate adjustment to the terms of the Will to satisfy the claim.
The applicant must be an eligible person and prove that the deceased had a duty or moral obligation to provide for his or her proper maintenance and advancement in life and that the distribution proposed under the Will fails to do that.
If this is shown, the Court may determine an appropriate adjustment taking into consideration various factors including the size of the estate and the interests of other beneficiaries or claimants.
Can a former spouse contest a Will?
The definition of an eligible person differs between Australian jurisdictions. In New South Wales, an eligible person includes a former spouse of the deceased person. Consequently, the finalisation of a divorce will not necessarily prevent the ex-spouse making a family provision claim, regardless of how long ago the divorce took place.
In such cases the Court acknowledges that divorce need not end all ties between previous spouses and that ex-spouses may, for whatever reasons, remain on good terms. The Court will need to ‘examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce’ (Churton v Christian (1988) 13 NSWLR 241).
Under what circumstances can a former spouse claim?
In O’Shaughnessy v Mantle (1986) 7 NSWLR 142 the Court set out guidelines under which it might entertain a family provision claim in circumstances where the applicant and deceased were divorced. These include:
- the applicant and deceased divorced before a property settlement was finalised;
- cases where maintenance was being paid to the applicant at the time of the deceased’s death and the maintenance orders were insufficient to provide for the applicant;
- cases where the applicant can demonstrate some dependency on the deceased at the time of his or her death such as provision by the deceased of financial support or medical treatment due to the serious ill-health of the applicant.
In all cases the Court must have regard to all of the circumstances (past and present) and be convinced there are factors warranting the making of an application and that adequate provision has not been made.
One of the objectives of the Family Law Act 1975 is to give finality to the financial affairs of separating spouses through a property settlement. Accordingly, once a settlement is finalised further provision from a deceased ex-spouse’s estate will be made only in extenuating and limited circumstances,
The case of Milewski v Holben  NSWSC 388 is an example of how the Court considers claims by a divorced applicant.
The applicant and deceased were married in 1988 and divorced in 1995 without having finalised a property settlement. The parties were amicable and the deceased, despite having remarried and had two children with his new partner, had on several occasions, declared his intentions to financially provide for the applicant.
When diagnosed with terminal cancer, he reiterated these intentions which were not ultimately included in his Will when he died in 2011.
His estate was worth over $11 million.
Although the estate had already been distributed, the applicant was successful in being awarded provision of $200,000 from the notional estate plus payment of her legal costs.
The applicant was born in America and the Court accepted her explanation that ‘the marriage came to an end because, with best intentions on both sides, she and the deceased could not settle down to a home base in the other’s country…She tried life in Sydney, but she desperately missed her extended family in the US. He still called Australia home.’
The deceased occasionally indicated to the applicant that a reunion might be possible and it appears that she was hopeful that this would eventuate up until the time he re-married in around 2009. He remained in contact with the applicant until his marriage and had visited her in 2000, 2003, 2006 and 2008.
On the evidence the Court considered that the deceased was ‘a man of conscious obligations of honour owed to each of those with whom he had shared his life’. His failure to formalise the promise to benefit the applicant financially arose not from a lack of wanting but merely because he had not determined, prior to his premature death, how to do so.
In all of the circumstances the Court was satisfied that there were ‘special circumstances’ and ‘factors warranting’ to justify the making of an order without financial detriment to the widow and her children.
A divorced spouse may, in some instances, succeed in a family provision claim.
The Court will need to find special circumstances warranting the bringing of the claim and balance the needs of the applicant with several other factors, including the needs of the deceased’s family at the time of death.
These claims are complex and require the guidance of an experienced estate lawyer.