Can a Former Spouse Make a Claim on Their Ex-Spouse’s Estate?

Can a Former Spouse Make a Claim on Their Ex-Spouse’s Estate?

Can a Former Spouse Make a Claim on Their Ex-Spouse’s Estate?

When a person dies, certain specified people are eligible to make a claim on the estate if they can establish to the satisfaction of the court that they have not been adequately provided for in the will and have a need for provision from the estate.  The categories of eligible persons entitled to make a claim include spouses, de facto partners, children, grandchildren, and even former spouses in certain circumstances.

A recent case in the Supreme Court of NSW involved the estate of a doctor. He met his wife when he was treating her as a patient. They both enjoyed playing squash together. They eventually formed a close relationship even though the woman was already in a relationship and living with another man. The woman ended that relationship and had a baby daughter with the doctor. They eventually got married and lived together for a short period. Two years after the marriage they separated and they reached a property settlement by order of the Family Court. The Family Law property settlement provided that the doctor pay to the former wife an amount of $100,000.00 and that custody of the daughter was to be given to the doctor.  After this, the former wife threatened to "make his life hell". She reported him to the NSW Medical Board alleging inappropriate sexual conduct when she was a patient.       

This led to the doctor being reprimanded for professional misconduct. Approximately twenty-five years after the divorce, the doctor became ill and died. In his will he left his entire estate to the daughter. Despite having a divorce and a property settlement 25 years prior, the former wife made a claim on the doctor’s estate (which was worth about five million dollars). At the first trial, the Court awarded the former wife $750,000.00. The daughter appealed the decision. On appeal the former wife's entire claim on the estate was dismissed, and she was ordered to pay her daughter’s legal costs.

The three Judges hearing the appeal held that the primary judge had erred by giving too much weight to financial issues including that the former wife was not financially secure and had a significant need for provision and that the estate was of ample size for it to be able to afford to make provision in favour of the former wife. He failed to take into account other relevant factors which are required to be taken into account under the legislation including the wishes expressed by the deceased in his will, the nature of the relationship between the former wife and the deceased, the conduct of the former wife towards the deceased and the Family Law property settlement between the former wife and the deceased. Commentators have suggested that this case evidences a trend of the Courts in recent times to give less weight to financial issues such as the size of the estate, the financial circumstances of the claimant and the beneficiaries, and financial needs of the claimant; and to give more weight to non-financial factors such as the nature of the relationship between the claimant and the deceased person, the conduct of the claimant towards the deceased person and the wishes of the deceased as expressed in the person's will or expressed to any other person during the life-time of the deceased when deciding to make orders for provision in favour of a claimant.  

It appears that this may be over-emphasising the importance of the decision of the Appeal Court. In this case when taking into account that it would seem to be fairly uncontroversial that the doctor would not wish to include his former wife who received a property settlement and who had made a series of complaints about him to his professional body over several years which had caused him significant professional embarrassment, as a beneficiary of his estate.

This case demonstrates that in Family Provision cases there is a range of discretionary factors which the Court is required to take into account and no priority should necessarily be given to financial factors over non-financial factors when deciding in the circumstances of the case, whether the Court should exercise its discretion to make orders for provision in favour of a claimant.

If you or someone you know might be an eligible person to make a claim, or if you are an executor of an estate facing a claim from a person claiming to be an eligible person to obtain orders for provision from the estate you should seek legal advice and call Fox and Staniland lawyers on (02) 9440 1202 or email