When can you contest a will?
Simply put a person can contest a will if they are eligible, and if it failed to provide adequate for them. However, for some categories of eligible persons such as a former spouse, it is necessary for there to be additional factors present that warrant the application [see: s 59(1)(b)].
Basic Facts
When Dr Lodin died intestate his former wife, from whom he separated almost a quarter of a century ago, brought an application for family provision and was given a legacy in the sum of $750,000 (noting that the net distributable estate was more than $5m).
The administrator of the estate, who was the child of the deceased, then appealed the decision and placed some emphasis on the length of the cohabitation (19 months) and the length of time they had been divorced (19 years).
Basis for appeal
One of the main grounds relied upon for this appeal was that the respondent considered the primary judge erred because there were no factors warranting the application. The Court of Appeal did not consider the following matters to point to there being such factors: -
- the alleged enduring impact the relationship breakdown had on the former wife;
- the predictions of the family court not becoming true i.e. her being able to complete studies and find employment
- the deceased prospering following the settlement
- the deceased’s estate having ample resources.
The Court of Appeal approved the decision of McLelland J in Re Fulop where His Honour observed that all evidence needed to be tendered before the question could be determined, and the need for such applicants to be regarded as natural objects of testamentary recognition. Here, a former wife (and a grandchild) would not ordinarily be regarded as an object of testamentary recognition. There needed to be some social, domestic or moral obligation (which was absent presently). It was significant that there was a property settlement and that the nature of the relationship following divorce was one where the former wife practically persecuted the deceased. As such no provision was made and the former wife had to pay legal costs.
When can you contest a will?
Simply put a person can contest a will if they are eligible, and if it failed to provide adequate for them. However, for some categories of eligible persons such as a former spouse, it is necessary for there to be additional factors present that warrant the application [see: s 59(1)(b)].
Basic Facts
When Dr Lodin died intestate his former wife, from whom he separated almost a quarter of a century ago, brought an application for family provision and was given a legacy in the sum of $750,000 (noting that the net distributable estate was more than $5m).
The administrator of the estate, who was the child of the deceased, then appealed the decision and placed some emphasis on the length of the cohabitation (19 months) and the length of time they had been divorced (19 years).
Basis for appeal
One of the main grounds relied upon for this appeal was that the respondent considered the primary judge erred because there were no factors warranting the application. The Court of Appeal did not consider the following matters to point to there being such factors: -
- the alleged enduring impact the relationship breakdown had on the former wife;
- the predictions of the family court not becoming true i.e. her being able to complete studies and find employment
- the deceased prospering following the settlement
- the deceased’s estate having ample resources.
The Court of Appeal approved the decision of McLelland J in Re Fulop where His Honour observed that all evidence needed to be tendered before the question could be determined, and the need for such applicants to be regarded as natural objects of testamentary recognition. Here, a former wife (and a grandchild) would not ordinarily be regarded as an object of testamentary recognition. There needed to be some social, domestic or moral obligation (which was absent presently). It was significant that there was a property settlement and that the nature of the relationship following divorce was one where the former wife practically persecuted the deceased. As such no provision was made and the former wife had to pay legal costs.
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