Although the obligation for a deceased to leave part of their estate to an ex-spouse diminishes after a family law property settlement has been finalised, an ex-spouse is still eligible to make a claim to challenge a Will, according to Associate CHRISTINE KNOLL.
An ex de-facto partner may also be eligible to make a claim to challenge a Will (regardless of how long ago the relationship ended). There are steps which can be taken which will reduce and in some cases eliminate the risk of an ex-spouse or ex de-facto from making a claim to contest your will. We can explain the options that are available to you and tell you what’s right for you in your circumstances.
In NSW the law provides that the following people are eligible to ask the Court to be given further or adequate provision, after that person has died, starting with spouses:
- the husband or wife of the deceased person
- a de facto partner of the deceased person
- a child of the deceased person (regardless of the age of the child)
- a former husband or wife of the deceased person
- a grandchild of the deceased person who was at any time wholly or partly dependent on the deceased person
- a person who was (a) a member of the same household of the deceased at any time and (b) wholly or partly dependent on the deceased person at any time
- a person who was living in a “close personal relationship” with the deceased person at the time of their death
The courts will consider various factors to determine whether a claim by an ex-spouse will be successful. For example, where there is an ex de-facto involved, if there was no formal property settlement following the breakdown of the relationship, an ex-spouse or ex de-facto may use this factor to support their claim.