SHOULD YOU MAKE A CLAIM ON YOUR EX-HUSBAND’S WILL?

SHOULD YOU MAKE A CLAIM ON YOUR EX-HUSBAND’S WILL?

Your former spouse has died. You are not flush financially. He was. Should you make a claim on his will?

Such a move will not be straightforward. As an ex-spouse you are eligible to apply but, for the court to consider your claim, you must establish that you were a “natural object of his testamentary recognition” (as his children and current spouse would be). In very simple words: did he “owe you something” or did he have a moral obligation to provide for you in his will?

To establish this obligation you need evidence that there are other circumstances (besides you being poor and  formerly married or in a de facto relationship) which mean that he did “owe you something”.

For example:

·     there was not a final property settlement at the time of separation (sometimes because the exiting spouse does not want to exacerbate a very fraught situation).

·     where the deceased died before property matters were resolved by the family court

·     where an ex-spouse had promised to make substantial provision to the former spouse in his will.

Even if you are able to establish a moral obligation then the court still considers other matters such as are there other eligible people whose needs are greater than yours and to whom the deceased was closer and had a more mutually supportive relationship.

In summary: In most cases a previous final property settlement is likely to terminate any obligation of the former spouse to provide for you in his will. Do not go down this track lightly, you need expert legal advice regarding your prospects and you need to understand that taking this on is exhausting both psychologically and possibly financially and also that it may disrupt your relationship with other family members.