NSW Deceased Estate - Claim on Will?

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10 September 2014
My daughter was married and then separated from, a man who subsequently became very wealthy. To my knowledge they were never divorced and the parting was amicable. This man died several years ago leaving a partner and child. In the meantime, my daughter had a bad fall with compound fractures to one leg and subsequent rehabilitation. In the years since she has become a bankrupt with low self esteem and depression and cannot seem to hold a job. I wondered if she would have any claim on his deceased estate. She took nothing with her when the marriage ended but needs some help now.


Dear Lana,

While former spouses are able to make a family provision application, the inclusion of ex- spouses is primarily intended to avoid situations where the deceased died after a divorce but before a property settlement. Therefore although ex spouses are eligible to make a claim this alone is not enough for him or her to be successful in a family provision application. Unless your daughter's spouse was providing some sort of maintenance or assistance to her as a result of her changed circumstances before he died, I am not sure that she would be entitled to anything from his estate based on the fact that she is now destitute. In this regard, read this article: http://www.craddock.com.au/Document...+-e2-80-93+FORMER+SPOUSE+OF+THE+DECEASED.aspx

In any event, a family provision application must be made within 12 months of the death of the deceased, unless the court otherwise considers that sufficient cause can be shown to bring it out of time. If the estate is already distributed after this time, then an applicant has no recourse.