Can a former spouse claim on a will deceased estate ?
The short answer is YES. While a former spouse is eligible to make a claim this fact alone is not sufficient for him or her to be successful.
In relation to former spouses, the Court must first determine whether in its opinion having regard to all of the circumstances of the case (whether past or present) there are factors which warrant the making of the application. This issue is determined on the whole of the available evidence. The whole of the evidence includes the making or otherwise of orders altering property interests in the Family Court of Australia. Whilst the existence of a property settlement will usually preclude a former spouse from successfully claiming further provision this is not conclusive. An application may be entertained if there has been a material change in circumstances since the Family Court property order was made.
Can I protect my will from a claim by my former husband or wife?
Too often a so called Deed of Release is used by lawyers – it is ill advised to rely on such deeds as they may be set aside by the Court. The only way to bar a claim is to obtain an Order from the Supreme Court pursuant to Section 95 of the Succession Act 2006. In determining an application for approval of a release of a person’s right to apply for a Family Provision Order, the Court takes into account all the circumstances of the case including
(a) it is or was at the time any agreement to make the release was made to the advantage financially or otherwise of the releasing party to make the release;
(b) it is or was at the time prudent for the releasing party to make the release;
(c) the provisions of any agreement to make a release are or were at that time fair and reasonable; and
(d) the releasing party has taken independent advice in relation to the release and if so has given due consideration to that advice.
For more information call THE NORTON LAW GROUP on 02 95606811