Challenging Wills: Do Family Property Settlements Preclude Family Provision Claims?

In general, it is expected that a person will make provisions for their close relatives and dependents in their Will. If a person feels that they have been left out of someone’s Will, they can bring a legal challenge against the deceased person’s estate.

This kind of lawsuit is known as a Family Provision Claim These claims are made under the Family Provisions Act 1982 (NSW). Under this Act, Family Provision Claims can only be made by “eligible people.” This phrase refers to the deceased person’s close family, such as spouses, partners and children, and any other people who are dependent on the deceased person.

Can a Family Provision Claim be brought by an Ex-Spouse?

Under the Act, an ex-spouse is presumed to be an eligible person, so one would think they would be entitled to make a claim against the deceased’s estate. It is unusual, however for a Family Provision Claim made by the ex-spouse of the deceased to be successful. This is because when spouses get divorced they usually go through a legal proceeding known as a Property Settlement. This is where the assets of the couple are formally divided between them. In general, the property settlement has been thought to remove the surviving partner’s status as an “eligible person” in relation to the deceased person’s estate. In other words, the property settlement was thought to bring an end to a person’s obligation to make provision for their ex-spouse in their Will.

In an extraordinary case decided by the Family Court in January 2017, a woman successfully brought a Family Provision Claim against her ex-husband after 25 years of separation and estrangement. The ex-wife was awarded $750 000.00 from her ex-husband’s estate. The court decided that in order for such a claim to hold up, there would have to be “factors which warrant” the making of such a claim. The factors which the court took into account in this case included the significant trauma the woman went through during her marriage to the deceased, and the long lasting impact this had on her life. This indicates that a Property Settlement between two ex-spouses may not be the end of testamentary obligations after all.

How can a Family Provision Claim by an Ex-Spouse be Prevented?

Let’s say that, hypothetically, you don’t want your ex-spouse making a claim against your estate if you die before him. This is obviously a fairly common sentiment amongst ex-spouses, especially where there is animosity between the parties. In this case, after a Property Settlement is finalized, the person wanting to protect their estate should make an application to the Supreme Court to extinguish their ex-partner’s rights to make a claim under the Family Provision Act.

At Hansons, we have a team of lawyers specializing in both challenging and defending Wills. If you are interested in Family Provision Claims, or how to defend against them, please contact Peter Bahlmann, Shae Mitchell  or Tom Sherley of our office.