Can a Spouse Contest a Will in NSW?

Can a Spouse Contest a Will in NSW?

Yes. A spouse can contest a will in NSW by making a Family Provision Claim.

A family provision claim is a claim for provision, or further provision, from a deceased person’s estate. It can arise where a spouse has been left out of a will, received less than expected, or has not been adequately provided for.

Spouse claims are often among the most significant types of family provision claims. This is because a surviving husband or wife may have shared a home, finances, responsibilities, children, debts, retirement plans and day-to-day life with the deceased.

For many surviving spouses, the issue is not simply inheritance. It is security.

They may be worried about where they will live, how they will meet expenses, whether they can retire, whether they can remain in the family home, or whether the deceased’s children from a previous relationship will receive most of the estate.

A person who was the spouse of the deceased at the time of death is an eligible person under section 57 of the Succession Act 2006 (NSW). The Court may make a family provision order if adequate provision has not been made for the applicant’s proper maintenance, education or advancement in life. The usual time limit is 12 months from the date of death.

This article explains when a spouse can contest a will in NSW, what the Court may consider, and why it is important to obtain advice early.

What does it mean for a spouse to contest a will?

When people say a spouse is “contesting a will”, they are usually talking about a family provision claim.

This does not usually mean the spouse is saying the will is invalid.

Instead, the spouse is usually saying:

“The will may be valid, but it does not make adequate provision for me.”

For example, a spouse may consider making a family provision claim where:

• they were left out of the will;
• they received only a small gift;
• they were given a right to live in the home but no money;
• they were given some provision, but not enough to meet their needs;
• the family home was left to someone else;
• the estate was left mainly to the deceased’s children;
• the estate was left to children from a previous relationship;
• the spouse is expected to move out of the home;
• the spouse has limited income or superannuation;
• the spouse has health issues or future care needs;
• the will does not reflect the length or nature of the marriage.

A spouse can also make a family provision claim where there is no will, although the position may be different because the intestacy rules may already provide for the surviving spouse.

Why spouse claims can be strong

Spouse claims are often strong because marriage usually creates significant moral and financial obligations.

In many marriages, spouses build their lives together. They may share a home, raise children, support each other, make financial sacrifices, contribute to property, care for each other during illness, and plan their retirement together.

When one spouse dies, the surviving spouse may be left in a vulnerable position.

Common issues include:

• the surviving spouse is elderly;
• the surviving spouse is unable to work;
• the surviving spouse has limited superannuation;
• the family home is owned by the deceased;
• the estate is left to adult children;
• the surviving spouse needs secure accommodation;
• the surviving spouse has medical or care needs;
• the deceased controlled most of the assets;
• the spouse has been given a life interest but no capital;
• the spouse is in conflict with stepchildren or other beneficiaries.

The Court will not simply give a spouse more because they ask for it. However, the needs and position of a surviving spouse are often taken very seriously, particularly after a long marriage.

Who counts as a spouse?

For the purpose of this article, a spouse means a person who was legally married to the deceased at the time of death.

This includes a husband or wife.

A de facto partner may also be eligible to make a family provision claim, but that is a separate category. De facto claims can involve additional issues, including whether the relationship existed at the date of death.

This article focuses on legally married spouses.

Is a spouse automatically entitled to the whole estate?

No.

A spouse is eligible to bring a family provision claim, but that does not mean the spouse automatically receives the whole estate.

The Court considers whether adequate provision has been made for the spouse’s proper maintenance, education or advancement in life, and if not, what provision should be made. Section 60 of the Succession Act 2006 (NSW) sets out matters the Court may consider, including the relationship between the applicant and the deceased, the applicant’s financial resources and needs, any disability, contributions, provision made during the deceased’s lifetime, and the size and nature of the estate.

The outcome depends on the circumstances.

A spouse may have a very strong claim in one estate, but a more modest claim in another. The answer will usually depend on the spouse’s financial needs, the length and nature of the marriage, the size of the estate, and the needs of other beneficiaries.

What will the Court consider in a spouse claim?

The Court may consider a wide range of matters, including:

• the length of the marriage;
• whether it was a first marriage or later marriage;
• whether it was a blended family;
• the age of the surviving spouse;
• the health of the surviving spouse;
• the surviving spouse’s income;
• the surviving spouse’s assets;
• the surviving spouse’s liabilities;
• the surviving spouse’s superannuation;
• whether the surviving spouse can work;
• whether the surviving spouse needs secure accommodation;
• whether the surviving spouse cared for the deceased;
• whether the surviving spouse contributed to the home;
• whether the surviving spouse contributed to the deceased’s business or wealth;
• the size and nature of the estate;
• the needs of children or stepchildren;
• whether the spouse received jointly owned assets;
• whether the spouse received superannuation or life insurance;
• whether the spouse received gifts or benefits during the deceased’s lifetime;
• any competing claims on the estate.

The Court looks at the whole picture. It is not just a mathematical exercise.

The family home is often central

In many spouse claims, the family home is the most important issue.

A surviving spouse may be deeply attached to the home. It may be where they lived with the deceased for many years. It may be close to doctors, family, friends, support services or community. It may also represent stability after the death of their husband or wife.

A spouse may have a strong need for secure accommodation where:

• they still live in the home;
• they cannot afford to buy another suitable property;
• they cannot obtain a mortgage;
• they are elderly or unwell;
• moving would be disruptive or harmful;
• they have limited income;
• they have limited superannuation;
• they contributed to the home or household;
• the deceased intended them to remain secure.

Sometimes a will gives the spouse a right to live in the home, but no meaningful capital. That may or may not be adequate depending on the spouse’s circumstances.

A right of residence can create practical problems. For example, the spouse may be allowed to live in the home but have insufficient money for rates, insurance, repairs, medical care, transport or everyday expenses.

In some cases, proper provision may require more than a roof over the spouse’s head.

Spouse claims in blended families

Blended families are one of the most common causes of spouse family provision claims.

This often happens where the deceased had a second spouse and children from an earlier relationship.

The deceased may have wanted to provide for their spouse, but also preserve assets for their children. Sometimes the will attempts to balance those interests. Sometimes it does not.

Common blended family disputes include:

• the spouse wants to remain in the home;
• the children want the home sold;
• the spouse receives a life interest but no capital;
• the children receive most of the estate;
• the spouse and children disagree about the deceased’s intentions;
• the spouse says they are financially vulnerable;
• the children say the spouse already received enough;
• superannuation or jointly held assets passed outside the estate;
• there is conflict about contributions, care or dependency.

These cases require careful handling. They are often emotional because the parties may all feel they have a genuine claim.

For a spouse, the question is usually whether the will leaves them with proper security and sufficient provision for their future.

What if the deceased left everything to the children?

A spouse may still be able to contest the will.

This is particularly important where the estate has been left to adult children and the surviving spouse has not been properly provided for.

The Court may need to balance the spouse’s needs against the children’s needs.

Relevant questions may include:

• How long was the marriage?
• Did the spouse live with the deceased at the date of death?
• Does the spouse need the family home?
• What income does the spouse have?
• What assets does the spouse own?
• What superannuation does the spouse have?
• What are the spouse’s future medical or care needs?
• Are the children financially independent?
• Do any children have special needs?
• Did the spouse contribute to the deceased or estate?
• Did the children receive benefits during the deceased’s lifetime?
• Is the estate large enough to provide for both the spouse and children?

Adult children can have valid claims. However, in many cases, the surviving spouse’s need for secure accommodation and financial support may take priority over the claims of adult children, particularly where the spouse is vulnerable, financially dependent, or lacks sufficient resources of their own.

What if the spouse received something, but not enough?

A spouse does not need to be completely left out of the will to make a claim.

Many spouse claims arise because the provision made is inadequate.

For example, the will may give the spouse:

• a small cash legacy;
• a right to live in the home;
• income from a trust;
• some personal possessions;
• a modest percentage of the estate;
• provision that is conditional or uncertain.

The question is whether the overall provision is adequate.

A surviving spouse may argue that the provision is inadequate because it does not properly deal with:

• housing;
• living expenses;
• medical expenses;
• aged care;
• transport;
• home repairs;
• inflation;
• loss of the deceased’s income;
• loss of the deceased’s care;
• retirement needs;
• financial independence.

The fact that a spouse received something does not prevent them from seeking further provision.

What if the spouse owns assets?

A spouse can still make a family provision claim even if they own assets.

The Court will consider those assets, but the existence of assets does not automatically defeat the claim.

For example, a spouse may own a modest home but have limited income. They may have some savings but significant medical needs. They may have superannuation but not enough to fund retirement. They may have assets that are not easily available without creating hardship.

The important question is whether the spouse has been left with proper provision, having regard to all of the circumstances.

On the other hand, if a spouse is financially secure and the estate is modest, that may affect the strength of the claim.

What if assets passed outside the will?

This can be very important in spouse claims.

Assets may pass outside the estate, including:

• jointly owned property;
• joint bank accounts;
• superannuation death benefits;
• life insurance;
• family trust assets;
• company assets;
• assets transferred before death.

These assets can affect both sides of the claim.

If the spouse received substantial assets outside the estate, the executor or beneficiaries may argue that the spouse has already been adequately provided for.

If assets passed to someone else outside the estate, the spouse may need advice about whether notional estate should be investigated. NSW has notional estate provisions that can, in some circumstances, allow property outside the estate to be treated as available for a family provision order.

Notional estate is complex and should be considered early.

Can a spouse contest a will if they were separated?

Yes, potentially.

If the spouse was still legally married to the deceased at the date of death, they may be eligible to make a family provision claim.

Separation may affect the strength of the claim, but it does not automatically prevent a claim.

The Court may consider:

• how long the parties were separated;
• whether there was a property settlement;
• whether there were Family Court orders;
• whether there was ongoing financial support;
• whether the parties remained connected;
• whether the spouse was still dependent on the deceased;
• whether either party had re-partnered;
• the reasons for the separation;
• whether there were children;
• the needs of other beneficiaries.

A separated spouse may still have a strong claim, particularly where there was no final property settlement and the spouse remains in financial need.

Can a former spouse contest a will?

A former spouse may also be eligible to make a family provision claim in NSW.

However, a former spouse claim is different from a current spouse claim.

The Court may look closely at whether there was a divorce, property settlement, financial agreement, ongoing support, children, unresolved financial obligations, or other circumstances that justify further provision.

This article focuses on spouses who were still married to the deceased at the date of death.

What if there is no will?

A spouse may still have rights if the deceased died without a will.

If there is no valid will, the estate is distributed according to the rules of intestacy. In many cases, a surviving spouse receives a significant entitlement.

However, family provision issues can still arise where:

• there are children from another relationship;
• there is a dispute about who qualifies as spouse or de facto partner;
• the spouse’s intestacy entitlement is inadequate;
• significant assets passed outside the estate;
• there are competing claims from children or dependants.

A spouse should obtain advice if there is any uncertainty about their entitlement.

What evidence does a spouse need?

Evidence is critical in a spouse family provision claim.

A spouse will usually need evidence about:

• the marriage;
• the length and nature of the relationship;
• the spouse’s financial position;
• the spouse’s income and expenses;
• the spouse’s assets and liabilities;
• the spouse’s health;
• the spouse’s accommodation needs;
• the deceased’s estate;
• competing beneficiaries;
• contributions made by the spouse;
• any assets passing outside the estate.

Useful documents may include:

• the will;
• the death certificate;
• probate documents, if available;
• marriage certificate;
• separation documents, if relevant;
• Family Court orders or agreements, if relevant;
• bank statements;
• credit card statements;
• mortgage statements;
• tax returns;
• payslips;
• Centrelink records;
• superannuation statements;
• medical reports;
• evidence of household expenses;
• evidence of rent or housing costs;
• property valuations and appraisals;
• evidence of care needs;
• evidence of contributions to the deceased or household;
• documents showing estate assets and liabilities;
• details of jointly owned assets;
• details of superannuation or life insurance received.

The spouse’s affidavit should explain the marriage, the spouse’s financial position, the spouse’s present and future needs, and why the provision made is inadequate.

Time limit for a spouse family provision claim

A spouse family provision claim in NSW must generally be commenced within 12 months from the date of death.

This deadline is extremely important.

It runs from the date of death, not from the date probate is granted and not from the date the spouse receives a copy of the will.

If the 12-month period has expired, it may still be possible to apply out of time, but delay can make the claim more difficult. It can also create practical problems if the estate has already been distributed.

A spouse who is concerned about their provision should obtain advice as soon as possible.

What if the estate may be distributed?

A spouse should act quickly if there is a risk that the estate may be distributed.

If an executor distributes the estate before a claim is made, this can complicate matters and make it harder to succeed with the claim. In some situations, urgent steps may be required to prevent final distribution.

When we are engaged to act in a spouse family provision claim, one of the first steps we usually take is to write to the solicitor acting for the executor and request confirmation that the estate will not be distributed pending the resolution or determination of the claim.

A spouse should not assume that filing a probate caveat is the correct step. A probate caveat is generally used where there is a dispute about whether a grant of probate should be made, such as where a person is challenging the validity of a will.

Unless the spouse is challenging the validity of the will, they should not file a probate caveat merely because they intend to make a family provision claim.

If there is a real risk of distribution, we can advise whether to notify the executor of the intended claim, request an undertaking not to distribute, or seek appropriate Court orders.

How are spouse claims resolved?

Many spouse family provision claims resolve by negotiation or mediation.

Settlement can allow the parties to reach a practical outcome without the cost, stress and uncertainty of a final hearing.

Possible outcomes may include:

• a lump sum payment;
• transfer of the family home;
• sale of the home and division of proceeds;
• a right to live in the home;
• payment from superannuation or other estate assets;
• payment of legal costs;
• timing arrangements for payment;
• releases and final orders.

Mediation can be particularly useful in spouse claims because it allows the parties to consider practical solutions that may not be limited to a simple percentage division of the estate.

For example, a spouse may be more concerned about secure accommodation than receiving a particular percentage. In another case, a spouse may need a lump sum to buy a home, pay debt, fund aged care or create financial security.

Court-annexed mediation and private mediation

After evidence has been filed, the Court will usually refer a family provision claim to mediation.

There are generally two types of mediation:

• Court-annexed mediation, where the mediation is conducted through the Court and is generally free to the parties; and
• Private mediation, where the parties jointly appoint and pay for an independent mediator.

Private mediation can be useful where the estate is large, the issues are complex, there are multiple parties, or the parties want more control over the choice of mediator and the time allocated to the mediation.

A good mediation strategy is not simply about choosing a number. It requires careful consideration of the evidence, likely hearing outcome, legal costs, estate size, competing claims and the risks of proceeding.

What makes a strong spouse family provision claim?

A strong spouse claim often includes several of the following factors:

• a long marriage;
• financial dependency on the deceased;
• limited income;
• limited superannuation;
• insecure housing;
• health issues;
• age-related needs;
• significant contributions to the household;
• care provided to the deceased;
• inadequate provision under the will;
• an estate large enough to make further provision;
• weaker competing claims from other beneficiaries.

No single factor guarantees success. However, where a surviving spouse has not been left with proper financial security, there may be good reason to investigate a claim.

Common mistakes spouses make

Waiting too long

The 12-month time limit can pass quickly, especially while the spouse is grieving or trying to negotiate informally with family members.

Assuming the executor will protect them

An executor must administer the estate. The executor does not necessarily act for the surviving spouse personally.

Accepting an offer without advice

A spouse may be pressured to accept an early offer. That offer may not properly reflect the value of the claim, the size of the estate or the spouse’s future needs.

Focusing only on the will

The will is important, but the broader estate position also matters. Joint assets, superannuation, lifetime gifts, liabilities and notional estate issues may all be relevant.

Filing a probate caveat for the wrong reason

A family provision claim is not a probate challenge. A caveat should not be filed merely because the spouse wants further provision.

Underestimating future needs

A spouse should consider not only their current expenses, but future housing, medical, aged care, transport, retirement and support needs.

Do we offer No Win, No Fee spouse family provision claims?

Yes. At PB Ritz Lawyers, we offer No Win, No Fee arrangements for approved spouse family provision claims.

This means that, subject to the terms and conditions of our costs agreement, if we agree to act for you on a No Win, No Fee basis, you do not need to pay our professional fees unless your claim is successful.

No Win, No Fee arrangements are not available in every case. Before offering this arrangement, we need to assess the strength of the claim, the size of the estate, the evidence available, the likely costs involved and the prospects of achieving a successful outcome.

If you are a surviving spouse and are concerned about legal costs, we can assess whether your claim may be suitable for a No Win, No Fee arrangement.

Why choose PB Ritz Lawyers?

At PB Ritz Lawyers, we regularly act in family provision claims in NSW, including spouse claims and blended family estate disputes.

We understand that spouse claims are often urgent, emotional and financially important. The surviving spouse may be dealing with grief, uncertainty, family conflict and pressure from executors or beneficiaries.

We can help you:

• understand whether you have a claim;
• assess whether the provision made for you is adequate;
• identify the estate assets;
• consider whether notional estate should be investigated;
• request that the estate not be distributed;
• prepare your evidence;
• negotiate with the executor;
• prepare for mediation;
• assess settlement offers;
• consider whether your claim may be suitable for No Win, No Fee.

Our focus is on helping you protect your position and achieve a sensible outcome.

Conclusion

A surviving spouse can often have a strong family provision claim in NSW, particularly where the will does not provide proper financial security, secure accommodation or adequate support for the future.

These claims should be considered carefully and early. The 12-month time limit runs from the date of death, and delay can create real difficulties if the estate is distributed.

If your husband or wife has died and you have been left out of the will, received less than expected, or are worried that the estate does not properly provide for you, contact PB Ritz Lawyers.

We can review the will, assess your position, advise on your prospects, and take steps to protect your claim.