Your Ex may be an Eligible Person to Contest your Will, provided they can show that they should be regarded as a Natural Object of Testamentary Recognition in the Circumstances.

Former Spouse: An Eligble Person?

In NSW, under section 57(1)(d) of the Succession Act, your former spouse (or former de facto partner) may be eligble to contest your will, provided that they can show that there are factors warranting the making of a Family Provision Application. The following factors are relevant to the question of whether there are factors warranting:

Natural Object of Testamentary Recognition

To establish that there are factors warranting, the applicant must demonstrate that the circumstances justify regarding them as the natural object of testamentary recognition. These factors must demonstrate a social or moral obligation on the deceased to make some provision for the applicant.

In the case of a former spouse, it is unlikely that this criterion could be satisfied merely by relying on the existence of the marriage and the fact that the former spouse has unmet financial needs. Generally, something more is needed to show that the former spouse should be regarded as the natural object of testamentary recognition.

Final Property Settlement

Whether the applicant and the deceased have finalised their financial relationship is a significant factor. While a final property settlement is not an absolute bar to a family provision application, in most cases such a settlement would likely terminate any obligation on the deceased to provide for their former spouse.

Relationship Between the Parties

The nature of the relationship between the applicant and the deceased will be a relevant factor, particularly where there are features of that relationship that could be said to impose a moral obligation on the deceased to make a provision for the applicant.

Lodin v Lodin was an appeal to the Court of Appeal, seeking to overturn the primary judge's decision to uphold the deceased's former wife's family provision claim. 

The Facts

The deceased, Dr Mohmmed Lodin, died in June 2014, leaving his $5 million estate to his daughter, Rebecca, as the sole beneficiary. The deceased’s former wife and Rebecca’s mother, Magdalena, applied for family provision. 

The relevant facts were as follows. Magdalena and the deceased commenced a relationship in 1984; their only child, Rebecca, was born in 1986. They were married in 1988 and separated in 1990. A property settlement between the parties was finalised in 1992, and they were divorced in 1995. The relationship between Magdalena and the deceased post-separation was characterised by Magdalena’s vindictive and financially self-destructive conduct, in which she instituted frivolous court proceedings and made unsubstantiated allegations of sexual assault and violence against the deceased.

At the time of trial, Magdalena was reliant on a disability support pension, having not been in full-time employment since 1997, largely a result of her involvement in several car accidents in 1997, 2000 and 2008, respectively. She had limited financial resources, was estranged from Rebecca, had a limited relationship with her daughter from a previous marriage, and suffered from various health issues, whereas Rebecca was in relatively stable financial circumstances.

First Instance Decision

At first instance, Magdalena was deemed to be an eligible person and was awarded a $750,000 provision. Specifically, the primary judge held that there were factors warranting making a family provision application, noting that the deceased had a moral obligation to make a provision for Magdalena. In reaching this decision, the primary judge emphasised the following:

  1. Although the relationship ended almost 25 years ago, the marriage and its breakdown had had an unusually enduring impact on Magdalena. Her conduct towards the deceased post-separation and her fraught relationships with others, including her daughters, were manifestations of this. 
  2. The predictions made in the Family Court judgment in respect of Magdalena’s future earning capacity had proven false, primarily because of the three car accidents. 
  3. The deceased had prospered post-separation and accumulated substantial assets, which was partly facilitated by Magdalena’s assumption of responsibility for their child, although the deceased did pay consistent child support. 
  4. The deceased’s estate had ample resources to provide both an adequate provision for the respondent and leave a substantial endowment to Rebecca.

Decision On Appeal

On appeal, the Court rejected the primary judge’s basis for determining that there were factors warranting Magdalena’s family provision application. Specifically, the Court noted:

  1. The primary judge erred in assuming that a deceased person has a moral responsibility to provide for a former spouse simply because the estate is large and the former spouse has financial needs. While Magdalena had been responsible for raising Rebecca, this did not itself make her an eligible person, particularly where the deceased had been punctilious in complying with his child support obligations.
  2. It was not open to the primary judge to attribute Magdalena’s circumstances of need to her relationship with the deceased and his conduct. Magdalena’s financial problems were attributable to her pursuit of unsuccessful legal proceedings against the deceased and her involvement in car accidents after separation.

In re-exercising their discretion, the Court of Appeal determined that Magdalena was not an eligible person to make a family provision claim, as there were no factors warranting the making of an application. The Court noted the following:

  • The marriage ended 25 years ago, and it was by all accounts a relatively short relationship.
  • The Family Court orders in 1992 finally resolved the financial affairs between Magdalena and the deceased. These orders retain their significance where there is no causal link between Magdalena’s financial needs and the deceased’s conduct.
  • The Family Court decision recognised that Magdalena would have primary responsibility for Rebecca. Further, the deceased had provided substantial child support and maintenance, sometimes beyond his legal obligations. Meanwhile, Magdalena had deliberately withheld information from the Child Support Agency and the deceased, which would have reduced the amount payable.
  • Magdalena’s poor financial circumstances were attributable to unsuccessful ligation against the deceased and the series of car accidents she was involved in. Here, it could not be said that the deceased had come under any moral responsibility to support Magdalena because of those injuries, where they were wholly unrelated to the parties’ relationship.
  • Finally, in the absence of a psychiatric illness or genuine disability, Magdalena’s persecutory conduct towards the deceased counted against any entitlement she may have.


The Court of Appeal upheld Rebecca's appeal and dismissed Magdalena's family provision application.

The Takeaway

Your Former Spouse or De Facto Partner may be considered an eligible person to contest your will. However, they will only be eligible where they can establish that, given the circumstances, they ought to be regarded as the natural object of testamentary recognition by you.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.