Can an ex-spouse contest a will?

For all involved, losing a loved one is undeniably a testing time. When it comes time to administer their estate, tensions surrounding the deceased’s Will and those they have or haven’t left an inheritance to can cause further complications.

If you believe the testator didn’t provide you with adequate provision for proper maintenance and support, you may be in the position to contest the Will.

For those considering lodging a family provision claim, it’s important to act swiftly in following this up. Applications must be made within six months of probate being granted and exceptions are few and far between.

Separation, divorce and contesting a Will

If you were married to the testator at one point, whether this relationship broke down through a marriage separation or formal divorce can impact their final Will and testament in different ways.

Marriage separation has no effect on an individual’s Will. This means, if you were previously mentioned as a beneficiary but are no longer named, the testator has updated their Will to reflect this relationship change. Alternatively, if the deceased failed or chose not to remove you from their Will, as an ex-spouse, you could still be entitled to inheriting certain assets. This stands true irrespective of how long you have been separated, even if the estranged spouse has re-partnered.

But, in Victoria, a formal divorce invalidates all clauses in a person’s Will that refer to their ex-spouse. For instance, if you were once intended to be the executor of the estate or to receive gifts, these clauses are voided. In rare cases; however, there can be an exception if it’s clear the deceased intended for you to receive certain provisions even after divorce.

One in three marriages end in divorce and, often, the technicalities surrounding this can leave surviving ex-spouses confused as to whether they are in a position to contest their former partner’s Will.

Can an ex-spouse contest a will in Victoria?

In unique cases, it is possible for a former spouse and/or former de factor partner to lodge a family provision claim against the estate.

In Victoria, Will contests lodged by a former spouse or domestic partner are uncommon and since 2015 when the eligibility criteria was introduced, there haven’t been any cases of this nature across the state.

To contest a Will in Victoria, an ex-spouse must first establish that they are legally considered to be an ‘eligible person’. This means showing that, at the time of the testator’s death, they:

  1. Would have been able to take proceedings under the Family Law Act 1975; and
  2. Have either not taken those proceedings or not finalised those proceedings; and
  3. Are now prevented from taking or finalising those proceedings because of the deceased’s death.

Next steps for contesting the Will

If you’re found to be an ‘eligible person’ under current law, you may in the position to contest the Will.

When you contest a Will, you accept that the document itself is valid, but argue that you have received inadequate provision or have been unfairly excluded from mention. The majority of these cases are resolved during mediation, with involved parties reaching a settlement agreement.

In cases where mediation fails, a court hearing before a judge is arranged. If possible, this route is generally avoided, as it takes longer to resolve the matter and can also be more costly to pursue.

When assessing the merit of a claim, there are numerous factors that the Court takes into consideration, including:

  • The relationship between the claimant and the deceased;
  • Any competing obligations;
  • The size and nature of the estate;
  • The financial needs of the claimant and beneficiaries of the Will;
  • Any evidence of the deceased’s intentions with respect to the claimant;
  • Health factors that relate to the claimant and beneficiaries;
  • The character and conduct of the claimant.

Getting started with your Will contest

If you believe you’re an eligible person and have decided to contest the Will of your ex-spouse, contacting an experienced estate lawyer is generally advised.

With expertise in will disputes, a lawyer can ensure you are, in fact, eligible to lodge a family provision claim against the deceased’s estate. Moreover, through assessing the specific details of your case, they can determine the merit of your claim and the likelihood of success if it was pursued further.

At Hentys Lawyers, we have over 25 years of handling will disputes. Enquire with us today to see how we can assist you with your matter, and see whether we are the right lawyers for you.