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Deceased Estates – Can my Ex-Spouse or Partner Make a Claim on My Estate?

24/08/2020

Successfully obtaining a Divorce and achieving and documenting your property settlement does not prevent a claim being made against the Estate of a deceased person by their former spouse. 

In all States and Territories of Australia there is family provision legislation that creates a right to seek provision out of the Estate of a deceased person.  In New South Wales the Succession Act of 2006 sets out the rights of certain persons called “eligible persons” to contest the Will of a person who has died.  Those potential claimants are called “eligible persons”. 

Who is an eligible person? – Succession Act New South Wales 2006 

Section 57 of the Succession Act New South Wales identifies certain persons as eligible persons and if a person is an eligible person they can make a claim against the Estate of someone who is deceased.  This claim can be made by an ex-partner or an ex-spouse even though there has been a divorce and a property settlement.

Eligible Persons include:

  • A person who was the spouse of the deceased person at the time of the deceased person’s death. 
  • A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death.
  • The child of a deceased person.
  • The former spouse of a deceased person.
  • A person who was at any particular time wholly or partly dependent upon the deceased and who was a grandchild of the deceased person or was at that particular time or at any other time, a member of the household of which the deceased person was a member.
  • A person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death. 

When will the Court make an Order for provision for a person who is an eligible person but not provided for in the Will of the deceased?

The Court may make a family provision order in relation to the Estate of the deceased person if the Court is satisfied that:

  • Having regard to all the circumstances of the case (past or present) there are factors which warrant the making of an Order for adequate provision for the proper maintenance, education or advancement of life of the Applicant and this has not been made by the Will of the deceased person or by operation of the intestacy rules or both.  The Court can make such order for provision out of the Estate as the Court thinks it ought to be made. 

When will the Court make an Order?

The following matters may be considered by the Court in the making of its decision as to whether to make provision out of the Estate:

  1. any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
  2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant,
  3. the nature and extent of the deceased person's estate being considered,
  4. the financial resources (including earning capacity) and financial needs, both present and future of the applicant,
  5. if the applicant is cohabiting with another person - the financial circumstances of the other person,
  6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made,
  7. the age of the applicant when the application is being considered,
  8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person,
  9. any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
  10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
  11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
  12. whether any other person is liable to support the applicant,
  13. the character and conduct of the applicant before and after the date of the death of the deceased person,
  14. the conduct of any other person before and after the date of the death of the deceased person,
  15. any relevant Aboriginal or Torres Strait Islander customary law,  
  16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

At Watson & Watson our experienced Family Law Solicitors can assist you in relation to all aspects of property/financial settlement matters including claims under the Succession Act New South Wales 2006.  If you are considering making a claim on the Estate of a deceased person and are unsure of your eligibility, prospects and other matters please contact Richard Watson Senior Family Lawyer or Shereen Da Gloria his Personal Assistant to discuss your matter and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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