Remaining married can leave your Will open to challenge

No Divorce, No worries? No Way!

29 August 2019

Remaining married can leave your Will open to challenges

We have seen a number of recent deceased estates where a deceased person remained married at the time of their death, despite having separated from their spouse for a significant period of time prior to their death.

Remaining married after separation and even following a property settlement may leave the door ajar for the ‘spouse’ to:

  1. Make a claim for further provision against the estate of the deceased person, pursuant to Part IV of the Administration and Probate Act 1958 (the Act);
  2. Make a claim on the deceased person’s superannuation death benefits, if the deceased had not made a Binding Death Benefit Nomination before their death; or
  3. Become entitled to part or all of the estate of the deceased person if they did not leave a valid Will.

Most clients, beneficiaries and executors are surprised by this advice and in many cases angry when the spouse in fact challenges the Will.

Often the deceased person and their spouse will have gone to the trouble of dividing their marital assets by way of a property settlement and associated orders of the Family Court, but failed to commence divorce proceedings. The reasons for not obtaining divorce orders can be varied and may include:

  • After what can often be a lengthy, challenging, emotional, and costly process for parties in obtaining a property settlement and dealing with the custody of any children of the marriage (if any), the parties may think it is not necessary to obtain a divorce, they may simply delay the process and never get around to it or may not wish to deal with a further court application;
  • The parties may be of the opinion it is not necessary to obtain a divorce having completed the division of their property. They believe there are no further steps to consider to separate their affairs from their spouse;
  • The cost of an application for divorce. The current filing fee for a divorce application in the Federal Circuit Court is $900, while there are additional fees for a solicitor to prepare the application;
  • For religious reasons they do not believe in divorce; and
  • The parties may not wish to enter into another marriage and do not see any need to obtain the divorce orders.

Claim for family provision

Under section 90A of the Act, an ‘eligible person’ bring a claim seeking further provision from the estate of a deceased person. Section 90 of the Act provides that an ‘eligible person’ includes a person who was the spouse of the deceased at the time of their death.

The recent case heard in the County Court of Doran v Forde [2016] VCC 347 held that the surviving spouse can bring a claim, even when orders of the Family Court dividing the marital assets had been made.

The facts of the case were as follows:

  • The plaintiff was 76 years of age and married the deceased in 1959. They separated after six months of marriage and then obtained a divorce five years later;
  • The plaintiff remarried some time later and had three children to her second husband. She then divorced her second husband after 21 years of marriage;
  • The plaintiff then remarried the deceased in 1989, and they separated again in 1995. They continued to live under the one roof until formally separating in 2000. However, and crucially, they did not obtain a divorce;
  • Family Court property orders were made in 2000, whereby the deceased retained the matrimonial home while the plaintiff received $70,000;
  • In the County Court the plaintiff contended that the property settlement was unjust and inadequate, and suggested that she had accepted less on the basis that the deceased would make provision for her through his Will. She suggested that they had an express understanding that he would do so, and that if she had sought more money via the property settlement then it would have required the deceased to sell the matrimonial home to source the money;
  • Despite the separation, the parties maintained an amicable relationship up until the death of the deceased. This included maintaining contact and seeing each other regularly, and going out together on social outings. The plaintiff had also assisted the deceased by taking meals to his home on a regular basis;
  • The executors for the estate sought to dismiss the plaintiff’s claim, and submitted that to be a ‘spouse’ and to be ‘married’ implies much more than the mere fact of a subsisting marriage. It was suggested that an examination of the actual relationship was required in order to see whether it had any of the usual characteristics which suggest that a domestic relationship exists or not.
  • This argument was rejected, and it was held that the legislature intended that a judge should not look beyond the definition of ‘spouse’ as that term is defined in the Act.
  • As a consequence, the plaintiff was entitled to proceed with her claim.
  • In the circumstances, the executors of the estate were forced to negotiate a settlement with the plaintiff in order to resolve her claim.

This case highlights that a husband and wife who are separated will remain an eligible person to make a claim on their deceased’s spouse’s estate irrespective of the actual relationship.

Moral of the story; while marriage revokes your Will, Separation and Divorce do not. If you want to ensure your ex-spouse is ineligible to challenge your Will as a ‘spouse’, then you must ensure you obtain a Divorce.

Our recommendations

If you are in a position where you have separated from your spouse but have not obtained divorce orders, then it would be prudent to contact us to discuss your individual circumstances so that we may assist you to achieve your estate planning objectives.

We can also refer you to a family lawyer to advise and assist you if required.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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