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Can an ex-spouse contest a will? What you should know

Getting a divorce is tough, and going through all of the legal requirements is a pain. From your insurance information to your mortgage payments, there is a lot to consider as you start checking off boxes. 

But what about your will? If you remained close with your ex-spouse, but throughout the divorce process they took you off their will, is there anything you can do? Maybe there are parts of the estate that were left in your ex’s name, but were yours in the end.

Let’s explore the legal steps you can take to contest a will and gain back some of the estate.

Divorce and an ex-spouse’s will

It may be obvious that someone’s partner (de facto, civil partner or spouse) is entitled to the estate after their other half passes away — but what about exes? Previous partners can also contest a will after their ex-spouse dies.  

Anyone can contest a will if they are an eligible person. This includes individuals like children, stepchildren, grandchildren, de facto partners and exes. The reason being that they feel like they were entitled to part of the estate. After all, they were dependent on the deceased, or they had a written promise that part of the estate would be left to them. 

Similarly, your ex may have left your name on the will, but you did not receive adequate provision compared to a previous financial agreement between the two of you. 

If there a new will shortly before the person passed away, this may raise questions about the validity of the will itself, which could prompt someone to challenge it. This person could be an ex-wife or ex-husband who continued to be a source of support and needed support from the deceased while they were living and after the separation.

Can an ex-wife contest a will? Can an ex-husband contest a will?

In general, the answer to the question of whether or not your ex-wife or ex-husband can contest a will is perchance. While the person may have the eligibility to contest, it doesn’t mean that they are necessarily entitled to any of the estate. You would have to prove rights to the property that you two jointly owned during the marriage, or any agreements you may have made. 

Furthermore, if the court notice that you were partially or wholly reliant on your ex-spouse to provide for you financially, yet they did not name you in the will, a judge will consider your financial needs. 

Some other points that may be considered include:

  • When the asset was acquired: If you are claiming an asset that was acquired before, during or after the marriage, the court will consider how you may have played a part in inheriting this asset. 
  • Your relationship with the deceased: While being dependent on your spouse financially is a factor, the court will also consider your relationship with the deceased as well. Was it kind? Was there any abuse or violence, whether it was verbal, physical or emotional? What was the divorce like?
  • How did you make contributions to the estate: If you made significant contributions to the estate at any time and you’re not trying to claim these items or sums back, the courts will consider the extent of your contribution.
  • The size of the estate: The size of the estate matters because not only will court fees need to be paid, but debtors and creditors will also need to get paid before any remaining assets are distributed. If there is another beneficiary with greater need than you, for example, the remaining funds will go to that person.

In short, if you choose to contest the will of an ex-spouse, in a civil partnership, de facto partnership, etc., you must be prepared to prove your entitlement to the estate. The reason being is that the divorce likely went through each asset between the two of you and each piece was divided during mediation or court before the divorce was finalised. 

If, however, the divorce was not a legally-binding partnership, then you, as the “ex-”, have the right to contest assets as long as you have the proof of entitlement.

State-specific examples

In Victoria, someone may contest a will if they were prevented from finalising the divorce because of the death of their ex-spouse. If the ex-spouse kept you on the will, no matter negligently or purposefully, no matter how long you have been divorced, you are still entitled to the estate. However, if the divorce finalises, then any mention of your inheritance is nullified. 

In Western Australia, Tasmania and the Northern Territory, an ex-spouse can contest a will if they are entitled to the estate or were already benefiting from it. 

In New South Wales, changes to your will do not happen automatically after your divorce. This means that after a couple separates, and someone passes away before they are able to make changes to their will, the surviving spouse has a legal right to the estate.

How to prepare for family court

The most important part of claiming assets in a family provision claim from the wills estate is lodging a claim before the start of probate. Probate occurs after the court has finalised the will and gives the executor the go-ahead to distribute the assets named in the document. 

If your ex-partner died without notice, and they had a will, you should file for letters of administration. This is typically filed by the next of kin, such as the most recent spouse (if the deceased did not remarry and has no children). 

Whoever acquires a grant of probate will be the person that you’ll work with to gain access to the estate and your entitlements. The individual who filed for the grant has been recognised by the court as a qualified person and who will proceed to carry out the duties the deceased left behind, such as selling assets or closing accounts.

What happens if a will is unwitnessed or unsigned?

In Australia, a will must be written and signed by a witness unnamed in the will present, and then approved legally by the Supreme Court to be valid. If these steps are not followed the will could be seen as invalid. 

There are some circumstances, however, where an unsigned and unwitnessed will is considered valid, such as:

  • A video recorded will.
  • An unsent text message.
  • The will was written digitally on the computer.
  • Only a photocopy of the will could be found.

While this is not typical, an invalid will is up for debate among beneficiaries and could be taken to court to discuss how the assets are distributed.

Legal advice on contesting a will in Australia

The family law partners at GMP Law have your best interest in mind. When it comes to legal advice regarding a family provision claim, our experts have the experience you need to understand your next move. 

There are a lot of factors that play into contesting a will and your entitlement to assets. If you’re wondering what your rights are as an ex-spouse, reach out to our office for a no-obligation consultation.

About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
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Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
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Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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