Recently, we wrote a blog about whether a spouse can contest a will in NSW. But what about those who are divorced or separated? Can a former spouse contest a will after the divorce?

With up to 30% of marriages ending in divorce, getting legal advice on how to update your will post-divorce, or make a claim on an ex-partner’s estate is key to protecting your assets.

As with any will contest, a claimant must first satisfy a court that they are an eligible person under section 57 of the Succession Act 2006 (NSW). 

A former spouse of the deceased is an eligible person under section 57(1)(d) of the Succession Act 2006 (NSW) if they can satisfy a court that there are ‘factors warranting the making of an application.’ Examples of factors that may warrant the making of an application may include existing maintenance orders either in the form of Family Court Orders or private agreements.

Lastly, the former spouse must satisfy a court that the deceased’s will did not make adequate provision for their ‘proper maintenance, education, or advancement in life.’ 

A former spouse refers to a person to whom the deceased was married but was divorced from at the time of the deceased’s death. A married person remains a husband or wife until there has been a decree absolute.

The reference to ‘former spouse’ in section 57(1)(d) refers to divorced people only – former husbands and former wives – and does not include a de facto partner, whose relationship with the deceased ended before death.

The Effect of Separation and Divorce on a Will

For any couple, whether they are married or de facto, undergoing a separation or divorce is a complicated and often emotionally-fraught process. Whilst dealing with the pain, inconvenience, and financial strain that separations often bring, it can be easy to forget to update important legal documents such as a will.

Section 13 of the Succession Act 2006 (NSW) applies on divorce to revoke some but not all of a person’s will. Specifically, it operates to revoke any gift made to the former spouse, and any appointment of the former spouse as an executor, trustee or guardian – unless the will expresses a contrary intention.

However, a will does not automatically update after a separation. Effectively, if a couple separates and one party dies before making changes to their will, their surviving ex-partner may well have a strong legal claim to the estate. That is why it is important to have a valid and updated will using professional legal assistance immediately following a separation.

What the Courts Will Take Into Consideration

The financial position and needs of the ex-spouse

Any will contest in NSW begins with a determination of whether a person is an ‘eligible person’ for the purpose of the Succession Act 2006 (NSW). Only an eligible person is able to contest a will. You can read more about what defines an eligible person here. Former spouses can constitute eligible persons in some cases.

Under the Family Law Act 1975 (Cth), a person may have a responsibility to financially assist their spouse, former spouse, de facto partner or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

For example, if a former spouse was in receipt of maintenance payments from their former spouse – as part of a divorce settlement or private agreement – and the loss of the financial support would result in loss to the former spouse, they may have a claim on the deceased’s estate for similar maintenance. 

The length of the marriage and the relationship between the ex-spouse and the deceased

Some separations end amicably while others may be bitter. Various shared responsibilities such as custody of children or large assets such as a house may be subject to long and difficult legal disputes during the separation process, which can compound resentment in already fractured relationships.

The degree of civility between the deceased and their ex-spouse may be taken into account during a will contest proceedings. A former couple that still shares custody of their children and sees each other regularly, sharing responsibilities such as school fees, may have a stronger claim on an estate if one partner was to pass away. 

It would be less likely that a former spouse who had not spoken to their ex-partner for decades, or had no shared responsibilities (such as children) with them would have a reasonable claim to the deceased’s estate. 

Similarly, a couple that had been together for many decades would be viewed through a different lens in regards to a will dispute than a couple that had been married for only a few months before divorcing.

Division of assets 

The division of property and assets on divorce can be by agreement or court order. 

If a former spouse has already obtained a favourable settlement in Family Court proceedings, the Supreme Court may be less likely to consider the will contest to have merit.

Child support payments 

Whether or not child support payments from an ex-partner to their former spouse continue after their death varies from a case by case basis, and can also differ between state laws. 

In NSW, a person’s entitlement to receive maintenance from a former spouse will often strengthen their claim against a former spouse’s deceased estate. 

Previous cases have found the maintenance must be by virtue of a court order or enforceable agreement, of which child support is one.

Generally speaking however, in NSW, if a parent dies who is making child support payments, those payments will cease upon death (unless the  child maintenance order expressly provides for it to continue after their death). Any child support (as opposed to future child support) remaining owing may be claimed against the deceased estate.

The size and nature of the deceased’s estate

Similarly to other will contest claims, the size and nature of the deceased’s estate is important, as costs must be taken into account. Court fees, as well as payments to outstanding debtors and creditors, will need to be paid before any remaining assets are distributed to any eligible former spouses.

Case Studies

Stockwell v Beaumont; O’Donnell v Beaumont [2019] NSWSC 1811

This case demonstrates how a small or unfavourable divorce settlement may strengthen a family provision claim by a former spouse. 

This case involved a family provision claim by the deceased’s third spouse (Margaret O’Donnell) and one of the deceased’s daughters on an estate worth $1.3m which had been left to the deceased’s youngest daughter.

As a former spouse, Ms O’Donnell also needed to show that there were ‘factors which warrant the making of the application’. In finding that there were factors which waIn relation to the former spouses claim, the court found that there were factors which warrant the making of the former spouse’s claim based on the fact that after 10 years of marriage (1989 -1999) Ms O’Donnell received a property settlement of about $30,000. The court found “this is likely to be considerably less than she would have received in a family law settlement”

The former spouse’s claim was successful and the court ordered she receive $150,000.

Lodin v Lodin [2017] NSWCA 327

This case involved a successful claim by a former spouse who was awarded $750,000 only to have the decision overturned and her claim dismissed on appeal. 

In this case, a former spouse brought a family provision claim on her ex-husband’s estate worth $5.4m which the deceased had left to his (and the former spouse’s) only child, an adult daughter. 

The former spouse was successful at first instance, and obtained a family provision order for $750,000. The daughter (as administrator of the estate) then appealed the matter to the Court of Appeal resulting on the family provision order being set aside. 

Though satisfied that the former spouse was an eligible person, the Court of Appeal was not satisfied that ‘there are factors which warrant the making of the application’.

The Court found several factors that weighed against the former spouse’s claim. 

First, that the marriage had effectively ended 25 years before the hearing; the relationship between the deceased and the former spouse lasted for less than 6 years; and the marriage itself lasted only 19 months. 

Secondly, the parties had entered a financial settlement some 25 years earlier. The Court found that in the absence of evidence demonstrating a significant causal link between the deceased’s conduct towards the former spouse and her financial needs, the financial settlement retained its significance for the purposes of the family provision claim. 

Further, that notwithstanding the former spouse demonstrating financial need, the Court was not satisfied that there was a causal link between the deceased’s conduct towards the former spouse and her financial needs and found that her financial needs were due to a combination of factors including her own decisions.

The Court of Appeal overturned the decision of the Supreme Court and ordered the former spouse to pay the estate’s costs. 

Brindley v Wade (No 2) [2020] NSWSC 882

This case involved an unsuccessful family provision claim by a former spouse on an ex-husband’s estate worth $460,000.

Having established that she was an eligible person, the former spouse was then required to satisfy the Court that ‘there are factors which warrant the making of the application’. 

The former spouse relied on two key grounds to satisfy the Court that there were factors warranting. 

First, the former spouse claimed that the deceased failed to disclose the seriousness of his brain tumour at the time of the divorce settlement proceedings and had she known the full extent of his illness she would not have accepted the divorce settlement on the terms that she did.

Secondly, the former spouse also claimed that the deceased failed to disclose an inheritance that he was anticipating during the financial disclosure stage of the divorce settlement proceedings and had she known of the inheritance, she would not have accepted the divorce settlement on the terms she did. 

The former spouse relied on these grounds to satisfy the Court that there were ‘factors which warrant the making of the application’. 

The Court disagreed and dismissed the former spouse’s claim. In relation to the divorce settlement, Hallen J stated at [174]:

“Once the property adjustment orders were made, each was no longer restrained in dealing with his, or her, assets, respectively, by any obligation to consider the financial position of the other. Nothing more was required by means of a testamentary disposition in favour of the other. Any obligation of either to make any testamentary provision for the other’s maintenance or advancement in life had ended. There was no reason for the deceased to engage his attention, or bounty, thereafter, in relation to the Plaintiff and in my view there was no reason why the Court should take any action either in making any order for provision for her either.”

Looking for legal advice and assistance in contesting a will?

If your ex-partner has recently died and you believe you have grounds to contest their will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. 

Want to learn more?

Read more about whether a current spouse can contest a will here.

Read more about the evidence you need to gather when contesting a will here.

Read more about considering mediation when contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.