Challenge a Will NSW
Contested Estates Division
Free consultation: 1800 529 529

Ex Wife Ex Husband

The Succession Act 2006 provides that a former wife or husband of the deceased person is eligible to commence proceedings seeking an order for provision, or further provision, from the estate of the deceased person.

I was the deceased's ex-wife / ex-husband - what's next?

Being eligible does not automatically mean that a Court can make an order disturbing the terms of the Will. For certain categories of eligible persons the Court also requires the person challenging the Will to establish that there are factors warranting the making of an order. A former wife or husband is one such category which must establish factors warranting. 

'Factors warranting' means that there must be circumstances which give the person claiming the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. Whether this is so will depend on all of the circumstances, most importantly the closeness of the relationship after the divorce.

Is there anything else the Court takes into account?

Once the Court is satisfied that there are factors warranting the making of an order in favour of an ex-husband or ex-wife the Court can proceed with determining whether the provision made in the Will was inadequate, and if so, whether an order should be made to disturb the terms of the Will.

In performing this task the Court has regard to a range of matters including:


  • any family relationship, including the nature and duration of the relationship.

  •  the nature and value of the estate.

  •  the financial resources and needs of all interested parties.

  • any physical, intellectual or mental disability of all interested parties.

  •  the ex-wife / ex-husband's age. 

  •  any contribution made to the estate or welfare of the deceased.

  • any provision made for the ex-wife / ex-husband by the deceased before or after death.

  • whether the ex-wife / ex-husband was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.

  •  whether any other person is liable to support the ex-wife / ex-husband.


All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.

An ex-wife or ex-husband faces a number of hurdles before they can make a successful challenge to a Will.

If you are an ex-wife or ex-husband of the deceased and have been left out of the Will, or are unsure, and would like to find out whether you have a case to challenge the Will and/or seek provision from the estate, then receive a no obligation assessment of your personal circumstances by an experienced estates lawyer, at no cost, by contacting us or commence our online assessment by clicking here.

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