Equity division was the focus of a recent case at the New South Wales Supreme Court, in which a will was challenged by the deceased's estranged husband.
The case involved the challenge of the deceased's will as it left no provisions for her estranged husband and child. A decree nisi of divorce had been pronounced between the couple however, it was not absolute at the time of the deceased's passing, therefore it was determined that the marriage was still valid.
The deceased's will was made eight days prior to her death and left a sole beneficiary - her sister. This was provided the sister survived the deceased by 30 days. The estranged husband and 9-year-old daughter claimed provisions out of the estate and restoration of money the deceased had paid from the estranged husband's superannuation fund.
The Supreme Court ordered that the superannuation fund be repaid, plus interest from the estate. Legacies were also to be provided from the estate to the estranged husband for child maintenance and to the daughter for education, maintenance and advancement. The money that was granted to the daughter by the court was to be held in a trust until she turned 18, with a trustee to be determined.
What is decree nisi?
In order to be granted a divorce by the Family Court of Australia it is necessary to satisfy the court that you have been separated for 12 months and one day and that the marriage has broken down irretrievably.
Once the grounds for divorce have been satisfied to the court grants an order called "decree nisi for dissolution of marriage". Section 55(1) of the Family Law Act states that the divorce does not become final until one month after a divorce order has been made or an order has been made under section 55(a).
Under section 55(1)(b) of the Family Law Act the court must be satisfied that the welfare and development of children of the marriage under the age of 18 has been provided for.
The Australian Securities and Investments Commission state that it is a good idea to update your will following a divorce or separation to reflect the change. This may include making changes to the enduring power of attorney, enduring guardian, how assets are divided and arrangements for the care of children.
The Family Law Court states that "the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children". These arrangements need to be made between the separating couple or, if an agreement cannot be reached, through a court order.
Contact a lawyer if you are interested in challenging a will.