The legislation that governs wills and who is eligible to challenge a will changed on 1 January 2015. The changes have narrowed the class of people who are eligible to challenge a will.
Under the new legislation, children and spouses will continue to be eligible to challenge a deceased person's will, but the situation for ex-spouses (including de facto spouses) is less certain. The difficulty lies in the new definition of who will legally be considered "eligible" to challenge a will.
Daniel Kaufman, a Senior Associate in Lander & Rogers' Family & Relationship Law practice, said, "This is one situation where the devil really does lie in the detail. The new definition does include a former spouse, but only where they would have otherwise been able to issue settlement proceedings under the Family Law Act, but were prevented from doing so as a direct result of the death of their former spouse.
"This is potentially tricky, as an ex-spouse may be prevented from issuing or continuing settlement proceedings under theFamily Law Act, for numerous reasons which may overlap with the death of a former spouse but may not be directly due to the death of their former spouse."
Partner, Craig Henderson, added that if a court decides that an ex-spouse's death was not the sole reason that the surviving party was unable to pursue their settlement through the family law courts, that person may find themselves both unable to finalise their settlement through the family courts, as well unable to finalise their settlement by challenging their former partner's will.
Henderson said, "Dealing with the issues arising from the breakdown of a marriage or de facto relationship is difficult enough without the complications that arise where a former spouse is terminally ill or dies. For lawyers, issuing proceedings at such a time to preserve a client's rights is unfortunately often a necessity, as a failure to act can leave their clients without financial recourse.
"It is often tempting for former couples to let time slip by after a relationship breakdown, rather than address their financial issues promptly. This delay can, however, cause significant problems where one of the parties dies in the interim. Seeking advice promptly is clearly preferable."