Will my ex be able to claim on my will?

If you created a will whilst in a relationship with your former spouse, they may be able to claim on it. They may potentially be entitled to part of your estate despite no longer being together with you.

In NSW, the court recognises the following people as being able to contest and make a claim on your will:

1. Your current spouse
2. Your current de facto partner
3. Your children
4. Your former spouse
5. Your grandchildren
6. A member of the same household as you
7. A person living in a ‘close personal relationship’ with you

Where such a claim is made, the Court will look at whether a moral responsibility was owed to that person contesting the will.

Does this extend to inheritance?

Receiving an inheritance during a relationship may cause some conflict and confusion as to who is entitled to it upon separation. Whilst you, as the receiver, may view the inheritance as being intended solely for your benefit and possession, your ex-partner may instead believe that it was given for the broader benefit of the family and should therefore be treated as a divisible asset to be shared amongst you.

Under NSW law, your former spouse may make an application for a claim on your inheritance if they believe they have not been provided for.

However, the success of this application depends on various factors including:

• Their financial position
• Their relationship to you at the time of your death
• The amount and worth of your inheritance
• Your relationship with others also attempting to claim

An inheritance is categorised within one of two groups:

1. An asset that can be divided between the parties.

Here, the inheritance is to be divided according to the property settlement.

2. A financial resource that a party can rely on

In this case, the inheritance is not included as an asset to be divided. The Court will consider that only the receiver of the inheritance will be able to access it and may make an adjustment to favour the non-receiver.  

For example, if you receive a large inheritance just before the relationship comes to an end, the Court will likely exclude this from the shared assets and to make up for it, adjust the property division to favour your former spouse. This could mean the property is now divided 45/55 to account for the added individual benefit of your inheritance. Here, the Court decides on the exact split. 

How can you prevent this from occurring?

In order to protect any part of your inheritance and Will from your ex you may like to consider taking the following precautions:

1. Consider entering a Binding Financial Agreement with your ex-partner
2. Mutual deed of release
3. Amending your will

Binding Financial Agreement

The easiest way to prevent your former partner from making a claim over your estate while you are in the process of a divorce is by reaching an agreement on how to divide assets. Through entering a Binding Financial Agreement (BFA), this agreement can be formalised and made legally enforceable.

A BFA can clearly state how assets will be divided after separation to provide protection and security for you. As well as this, the agreement can specify that upon separation, only property and assets acquired jointly during the marriage will be divided, and no assets or inheritance attained by you individually will be included.

Mutual deed of release

By entering a mutual deed of release, you can entirely prevent your former spouse from claiming on your Will. This is a written agreement in which you mutually agree not to make such claims against one another.

However, a mutual deed of release is not legally enforceable nor binding until it has been approved by the NSW Supreme Court. In order for approval to occur, you must first present an application to the Court that states the mutual promises in the desired deed.

It is important to note that this option is primarily suitable for separating couples who have finalised their property settlement and are capable of living independently without any financial aid.

If this is not you, you may want to look more towards the other options. If you would like assistance with finding an option right for you, get in touch with us via the contact form.  

Amending a Will

Since your former spouse is likely to have been a named beneficiary in your Will throughout your relationship, it is encouraged that you look into having your Will amended to ensure your assets go exclusively to the people you want them to. This will prevent your ex from future claims.

What if I didn’t make a will?

In the event that you do not create a Will prior to passing away, the law determines how your assets will be divided and distributed. In this circumstance, your property would most likely go to your partner at the time of your death (if you have one) as well as any of your children. However, this does not stop your former spouse from making an application for a portion of this, and so it is highly recommended that you create a Will early to prevent this from occurring.

If you would like assistance with this process, get in contact with our team of friendly family lawyers.