Left Out of a Will? Rights of Spouses and De Facto Partners in Western Australia.

Many people assume that a surviving spouse or de facto partner will automatically be looked after when their loved one passes away. Unfortunately, that is not always the case. A surprising number of spouses and de facto partners are not provided for (or are inadequately provided for) in their significant other’s will. This can be particularly distressing for spouses or de facto partners who are not listed on the certificate of title as an owner of the family home, potentially leaving them without secure accommodation and insufficient funds to meet their future needs.

The Family Provision Act 1972 (WA) (the Act) was introduced to provide protection for eligible applicants (spouses, de facto partners, children and in some cases grandchildren and stepchildren) who are not provided with adequate provision in a deceased’s will, and therefore, left in a vulnerable position.

The Act, and supporting case law, is particularly aimed at offering protection to an eligible applicant who has been financially dependent on the deceased and has little to no ability to financially support themselves.

A Family Provision Act claim can also be brought in circumstances where the deceased dies intestate (without a will), and the provision allocated per section 14 of the Administration Act 1903 (WA) (Administration Act) is inadequate to meet the needs of an eligible applicant.

It is not enough to simply be an eligible person to bring a claim in accordance with section 7 of the Act, an applicant must also demonstrate that the will (or entitlement under section 14 of the Administration Act) did not make adequate provision for the proper support, education or advancement of life of the applicant. To demonstrate this, it is necessary to evaluate:

1. the value of the estate in question;
2. what provision (if any) was provided for the applicant in the will;
3. the personal and financial circumstances of the applicant;
4. whether there are any competing claims (other beneficiaries with financial need, or competing Family Provision Act claims), the needs of those with competing claims, and the totality of their relationship with the deceased; and
5. the moral obligation owed by the deceased to make provision for the applicant in their will.

The case law largely supports that the spouse or de facto partner of the deceased should be left with the family home, or enough money to purchase a home, especially in instances where the deceased provided accommodation for the spouse while they were alive.[1] The Courts generally accept that in these circumstances, it is reasonable for the spouse to seek accommodation that is on par with what they were accustomed to while the deceased was alive. [2] For example, if they lived in a house with the deceased, then it is not reasonable to expect that the spouse should now live in an apartment for a portion of the value.

It is also widely accepted that the spouse or de facto partner should be allowed a contingency fund for life’s unexpected circumstances.[3] This, however, will depend on the net value of the estate and whether there are competing claims against the estate.

This is supported in the case of Nicholls v Zis [2001] WASC 301 where the Court found that the deceased wife, who had left her husband a one third share in the matrimonial home, had not made adequate provision for the proper maintenance, care and advancement of life of the husband. In this case, the husband was of retirement age, his sole income was the pension, and he had no substantial assets. The Court granted the husband the right to reside in the matrimonial home until he could no longer live there. In this case, the estate was small and there were competing claims from the deceased’s adult daughters, and so the whole property was not granted to the husband.

However, in the case of Golosky v Golosky [1993] NSWCA 111, the Court found that a right to reside in the matrimonial home and $150,000 in cash, was inadequate to meet the needs of the surviving spouse because it did not provide the spouse with the ability to acquire future accommodation if they decided to move, or if the size of the property became unsuitable as they grew older. In this case, the spouse was significantly younger than the deceased and had abandoned her life in America and moved to Australia with her young child, because the deceased had promised her a life together with financial security. Accordingly, the Court found that the deceased should have provided the spouse with enough provision to maintain the lifestyle he had originally promised her, for the remainder of her life.

Waddingham v Burke [2015] WASC 65 sets out that a spouse who has been financially supported by the deceased for many years, has a primary claim for further provision from an estate, recognising that in these circumstances a deceased spouse has a moral obligation to ensure that their surviving spouse is left with adequate provision and a buffer for contingences as they approach their later years in life.

Further, in the case of Robinson v Robinson (As Admin of Estate of Lowah) [2024] WASC 140, the Court held that where a widow was left with limited financial resources, accommodation and a fund for living expenses and contingences was justifiable. However, suitable provision would be dependent on competing Family Provision Act claims against the estate.

In instances where the estate consists of only the primary residence of the deceased, and there are other competing claims from other beneficiaries or defendants, then a Court is less likely to direct the entire property to the benefit of the spouse or de facto partner. Accordingly, being aware of the size of an estate is essential prior to commencing a Family Provision Act claim.

[1] Waddingham v Burke [2015] WASC 65 at [87].

[2] Golosky v Golosky [1993] NSWCA 111 at [11].

[3] Golosky v Golosky [1993] NSWCA 111 at [18] and [19].

It is important to be aware that there is a limitation period for bringing a Family Provision Act claim. All claims must be brought within 6 months of the date of the grant of probate. While an eligible person can bring an application to bring a claim out of time in certain circumstances, it is best practice to be prepared and bring a claim within time to reduce unnecessary legal costs and ensure that the estate has not yet been disrupted by the executor or administrator.

Navigating the loss of a loved one is never easy and discovering that you have been left without adequate financial support can make an already difficult time even more overwhelming. Family Provision Act claims exist to ensure that eligible applicants, particularly spouses and de facto partners who were financially dependent on the deceased, are not left in a position of hardship.

Every estate and family situation is unique, and the outcome of a claim will depend on a range of factors, including the size of the estate, the applicant’s financial and personal circumstances, and any competing claims. If you believe you have not been adequately provided for in a will, it is important to seek legal advice as soon as possible, as there is a limitation period for bringing a claim.

Obtaining early advice can help you understand your rights, assess the strength of your claim, and take the necessary steps to protect your interests during what is often a challenging and emotional time.