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Articles and legal news from the Atkinson Vinden Team.

Claims Against your Estate from your Former Spouse

Commercial Law

 

Can I contest my ex husband’s /ex wife’s will?

If you live in NSW, then the short answer is yes. In fact, any person who was a member of your former spouse’s household and who was either wholly or partly dependent on him/her during that time (as well as a number of other listed persons), also has the right to contest the will so contesting a person’s will can get very messy.

The question the court will ask is whether there was a moral obligation for the deceased to provide for that person, or any other individual contesting the will.

Is my ex wife /ex husband entitled to my inheritance

In NSW there is no express entitlement of an ex spouse to a portion of your inheritance. In a perfect world, your will, will be distributed according to your wishes amongst the individuals stipulated within it.

The Succession Act 2009 NSW, does however provide a category of persons who are eligible to make an application for provision from a deceased person’s estate if they have not been adequately provided for. This would include, amongst others, a deceased person’s former spouse.

Whether such an application by your former spouse would be successful would depend on a number of things including their financial position, their relationship with you at the time of your death, the size of your estate and your relationship with other persons who are eligible to make a claim.

What if my ex spouse dies and leaves no will?

If you and your ex spouse are divorced and your ex spouse dies and leaves no will, you do not have an automatic entitlement to a portion of their estate. In such circumstances, your ex spouse’s estate will be distributed amongst a person legally married to your ex spouse, or a “person who was a party to a domestic partnership immediately before the death” as well as any children if your ex spouse has children from a former relationship.

So, if you and your ex spouse had children together then your children and any other children of his/hers will be entitled to a portion of his/her estate.

This does not however preclude you from making an application for provisions from your ex spouses estate (see above).

How can I prevent my ex spouse from making a claim for provision under my will when I die?

In order to entirely preclude your former spouse from making a claim for provision under your will when you die, you and your former spouse can enter into a mutual deed of release. This is a written agreement between you and your former spouse in which you each promise not to bring such a claim against their Estate.  As the name suggests, the agreement must be mutual.

In order for a mutual deed of release to be legally enforceable, an application must be brought in the Supreme Court of NSW for the mutual promises in the deed of release to be approved of and upheld by the Court. It is important to note that the mutual deed of release is not binding on the Supreme Court until it has been approved of by it.

A mutual deed of release is not suitable for every separating couple. It is generally only suitable for couples who have finalised their property settlement after separation and are able to be entirely financially independent of the other in the future. If you or your spouse remain financially dependent after separation, for example relying on ongoing spousal support, then a mutual deed of release will generally not be suitable.