22 Mar 2015

Contested Wills and the New Spouse

0 Comment
How is a Family Provision Act claim decided when there is a spouse from a new relationship and children from an old relationship?

It is not uncommon for people to have been in more than one long-term relationship in their lifetime, particularly if their former relationship (either a formal marriage or a defacto relationship) ended at a relatively early stage of life due to divorce or death.

It is also not uncommon for a new spouse to have children from a former relationship.

So in inheritance terms, where does a spouse of a deceased person stand in relation to the biological children of the deceased from a former relationship?

Often, spouses will each make a will which will provide that their entire estate will pass on their death to the surviving spouse and, if their spouse has already died or dies at around the same time, to other beneficiaries such as children or other family members.  However, this is not always the case, and it is sometimes the case that a subsequent spouse is not provided for, adequately or at all.

There is an ability for the distribution of the estate under the will to be challenged by one or more of the classes of beneficiaries listed in the Family Provision Act 1972 in WA (formerly known as the Inheritance (Family and Dependants Provision) Act or often just the “Inheritance Act”).

The Act makes no distinction between a first spouse, second spouse or even a fifth spouse for the purposes of making a claim for increased provision from the estate of the deceased.  However, the courts of WA may consider that the biological children of the deceased have a greater moral claim to the estate than a subsequent spouse, when weighing up the claims.  This is especially important when the estate is not large.

The proportion of the estate that the subsequent spouse may be entitled to will depend on a wide range of factors, including, but not limited to:

  • The duration of the marriage;
  • The history of the marriage;
  • The nature of the competing claims against the estate;
  • Whether the subsequent spouse was a carer for the deceased;
  • The health and age of the subsequent spouse; and
  • The extent to which the subsequent spouse built up the estate.

There are no hard and fast rules as to what a subsequent spouse ought to receive from an estate.  However, the courts will attempt to place the subsequent spouse into a position where he or she will not be beholden to the executors or trustees of the estate.

This is a complicated area of law, and it is important to get careful legal advice.

[top]
About the Author


Joshua is a member of our Commercial practice group. He provides commercial legal services and has experience in commercial leasing, property law and conveyancing, wills and estate planning, commercial contracts, corporations law, mining law and bankruptcy. He has also worked in native title matters.

Leave a Reply

Your email address will not be published. Required fields are marked *