Can a former spouse or de facto partner contest a Will?

A former spouse or de facto partner may contest a Will pursuant to section 5AA of the Succession Act 1981 (Qld) (“the Act”).

What defines a spouse of the deceased?

Pursuant to section 5AA of the Act, a spouse is defined as the deceased person’s:

  • husband or wife; or
  • de facto partner; or
  • civil partner; or
  • dependent former husband or wife, or civil partner.

A dependent former husband or wife is a person who was divorced by or from the deceased at any time before or after the commencement of the Act, and had not remarried or entered into a civil partnership with another person before the deceased passed away, and was entitled to receive maintenance from the deceased.

What is the meaning of ‘entitled to receive’?

As outlined in our earlier article regarding family provision claims, there are a number of factors considered by the Court as to whether the applicant is entitled to further and better provision from the estate.

In deciding an application, the Court adopts a two-stage process to be applied by the Court, in accordance with the common law authority of Singer v Berghouse (1994) CLR 201. The first stage of the process is whether the provision under the Will, if any, made by the deceased was inadequate and in consideration of the circumstances, was the proper level of maintenance appropriate for the applicant.

In the event that first stage is satisfied, the second stage of the process considers the determination of what provision should be made based on the circumstances of the applicant.

With respect to former spouses and de facto partners, often the Court needs to consider any existing Family Court of Australia orders made in light of maintenance, and whether that maintenance has continued up until the deceased’s passing.

Case law application

Ryan v Harrison [2020]

In a recent decision made by the Supreme Court of Queensland[1], the Court considered ‘entitled to receive’ in context of the definition of ‘widow’. In that case, His Honour Judge Martin noted the definition provided in Krause v Sinclair[2] whereby the “extended definition of widow should comprehend a woman who otherwise fails to come within it only because an obligation to make payments to her is not met, and this is what I consider the words ‘entitled to receive’ are intended to achieve.”

His Honour noted that an existing Family Court of Australia order made on 1 September 1992 was in effect, and the applicant, being the former wife of the deceased, relied upon the order as the basis of her application for further and better provision.

The applicant maintained that the deceased had continued to provide her with maintenance, outside the terms of that Family Court order. However, His Honour contended that there was no evidence of a contract or agreement between the deceased and the applicant and on that basis, the application was dismissed.

In that circumstance, there were a number of issues at hand including the provision of maintenance and whether an agreement existed between the deceased and the applicant.

Alagiah v Crouch [2015]

In the matter of Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015][3] (“Alagiah v Crouch”), the applicant and the deceased were married for 22 years until their divorce in 2012. The deceased passed away in January 2013, and the wife made an application for further and better provision from the estate.

In contrast to Ryan v Harrison where a property settlement had been finalised, in this case there were attempts made by the deceased and the applicant to finalise a property settlement, however the deceased passed away before proceedings could be filed in the Family Court.

Importantly, the Family Law Act 1975 (Cth) (“the FLA Act”) does not contemplate the institution of property proceedings following the death of one of the parties, however, proceedings can be continued after a party passes away.

In Alagiah v Crouch, Counsel for the applicant argued that the definition for maintenance under the FLA Act and under the Succession Act should not be mutually exclusive, and in fact, the applicant was entitled to receive maintenance in any circumstance.

His Honour made a determination that the applicant was not entitled to receive maintenance in the instance where an “actual crystallized right” to payments of maintenance was absent, such as by way of an existing order or agreement.

What does this mean for former spouses and de facto partners?

Whether a former spouse or de facto partner is entitled to receive maintenance is subject to a firm threshold imposed by the Courts whereby a strict interpretation of the Succession Act 1981 (Qld) has been applied in recent caselaw.

This means that if you are a former spouse or de facto partner, it is essential that you seek legal advice with respect to your personal circumstances as a matter of priority. Further to this, it is strongly recommended that you seek independent legal advice in relation to any existing property settlement or previous order made within the family law jurisdiction.

If you would like to discuss your circumstances, please contact Renee Pappagallo, Partner in the Property and Commercial team at DSS Law, for an initial consultation today on (07) 3210 2373.

[1] Ryan v Harrison [2020] QSC 267.

[2] [1983] 1 VR 73.

[3] [2015] QSC 281.

06/10/2020

disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.