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

Husband or Wife

A husband or wife as at the date of death of the deceased person is an Eligible Person for the purposes of the Succession Act. This eligibility does not mean that a claim will be successful, but enables the husband or wife to bring the claim in the first instance.

Being a husband or wife is a question of fact and for the purpose of eligibility the quality of the relationship matters not- if the deceased was legally married as at the date of death, then the husband / wife can challenge the estate.

Ex-husbands and ex-wives are also a category of eligible person but face an additional hurdle in making a claim. Information on ex-husbands and ex-wives can be found here.

I am the deceased's wife or husband - will I be successful?

A Court will only make an order for provision, or further provision, from an estate of a deceased person if it is satisfied that the provision made in the Will for the wife or husband was inadequate. If so, the Court will proceed to determine whether an order should be made to disturb the terms of the Will, and to what extent.

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 age of the wife / husband.
  • any contribution made to the estate or welfare of the deceased.
  • any provision made for the wife / husband by the deceased before or after death.
  • whether the wife / 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 wife / husband.

While all cases have their own particular circumstances, husbands and wives have a high moral claim to an estate. While a general overview has been provided above there are a number of subtleties in this area of law and it is important that you seek advice from the lawyers in the Contested Estates Division because they regularly appear before the Court in these types of applications.

If you were the husband or wife of the deceased person and wish 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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