Unto death do us part, or maybe not?

Whilst a former divorced spouse is an eligible person in NSW to make a family provision claim against the estate of a deceased spouse (section 57 Succession Act 2006), generally speaking such claims are not common or successful.

However, in a very recent Supreme Court case, a former spouse was successful in her application.

The deceased died without a will and his daughter was the only beneficiary. The surviving spouse and the deceased had separated 25 years before the deceased’s death and their property settlement had taken place 22 years before the deceased’s death.

The facts of the case leant themselves to an order being made in the former Wife’s favour. The estate had a value of $5 million and the Judge made provision of $750,000 to the plaintiff.

The Judge found “factors warranting the enduring impact of the relationship on the plaintiff” and “her indirect contributions to the deceased’s estate”. The size of the estate in dollar terms was also relevant, as was the absence of competing claims (other than the one beneficiary).

The Judge also found the provision of $750,000 to the plaintiff would allow her to obtain a “reasonably appropriate” home, meet her living expenses during her lifetime and leave a small fund for “contingencies”.

Family provision claims under the Succession Act 2006 are important aspects of estate law. It is a specialised area of practice by Solicitors and Barristers. If you believe you require advice about a possible family provision claim it is important you take that advice promptly. Strict time limitations for commencing claims do apply and are enforced by the Court.

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