Can a husband exclude his wife as a beneficiary in his Will?

Senior man signing Last Will and Testament at wooden table indoors, closeup

Bentleys Law presents this Blog for the information of anyone considering making a family law provision under the Administration and Probate Act 1958. The issues raised are important as the Victorian Supreme Court has confirmed that even a strong moral claim does not automatically entitle an applicant to provision from a deceased estate. The decision in Wielicki v Millar provides important guidance for anyone considering a family provision claim.

The background:

The plaintiff in this case was the widow of the deceased and a medical practitioner. She had entered into a relationship with the deceased about a year after her first husband had died. She described her relationship with the deceased as ‘wonderful and loving’. [14]

The husband had a daughter from a previous marriage.

The husband suffered from significant health issues throughout the relationship including serious heart problems which necessitated surgery in 2004.

In 2009 the husband had a stroke which left him unable to speak and with poor balance. Consequently, rehabilitation took almost one year, and the wife stopped work to care for him.

Although she had returned to work when she was able to her hours of work were reduced so she could care for her husband.

Sometime after 2011 the husband’s health deteriorated and the wife cut her hours of work so she could care for him and take him to appointments.

By 2019/2020 the husband’s health had deteriorated significantly and he was hospitalised, diagnosed with severe heart problems. From that point on until the husband’s death four years later the wife became the deceased’s full-time carer.

The husband died from heart failure in May 2024.

Was the husband obligated to leave his estate to his wife?

There was no dispute that the husband had the responsibility to make provision for the wife’s proper maintenance and support. The real issue in dispute involved the type of need required to be demonstrated by an applicant to satisfy the Court that the distribution of the husband’s estate failed to make adequate provision for the wife’s proper maintenance and support.

The wife expressed hurt when she realised that she had been excluded from the deceased’s Will given that the relationship was loving and she had sacrificed a lot to look after him. She noted that sacrificed her career and her considerable earning capacity to care for her husband during his long illness.

The husband’s estate:

The gross value of the estate was $1, 978,326.55 with liabilities of $344,600. Under the terms of the Will the estate passed to a testamentary trust of which the husband’s daughter from a previous marriage was the primary beneficiary.

The wife’s financial position:

The wife described her financial position as stable. She owned a house in Patterson Lakes which was unencumbered and valued at $2,650,000, and two investment properties which were valued collectively at $3,140,000. She had superannuation in the form of a further property which paid $25,000 in rent and a term deposit of $300,000.

The wife asserted that while she is ‘far from destitute’ she ‘sacrificed her career and her considerable earning capacity’ to care for the deceased when he was unwell. [26]

What does the law say about the eligibility of the wife?

In terms of the eligibility of the plaintiff to make a claim the Court stated that under s.91(1) of the Administration and Probate Act ‘…the Court must not make a family provision order unless it is satisfied that:

a) At the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and

b) That the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person, including by the terms of the deceased’s Will. [60]

The Court acknowledged that the deceased had a moral duty to provide for the wife as a result of her standing as the spouse of the deceased, but also by the ‘loving and dutiful care she gave to the deceased over many years.’ [61]

The Court went on to say that in a claim under the Act the Court must determine the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the plaintiff. The Court stated that:

‘In other words, the Court must consider the relative concepts of ‘adequate’ and ‘proper’ in determining whether the deceased has fulfilled his moral duty to the claimant …’ [62]

How did the Court resolve this case?

The Judge determined that:

I am satisfied that the factors identified by the plaintiff’s counsel inform the existence and content of the deceased’s moral duty to the plaintiff. Subject to demonstration of financial and other need, they would also be relevant to the Court’s assessment of what is required for the proper maintenance of the plaintiff. In my view the plaintiff has made a strong claim on the basis of the deceased’s moral duty alone but has not demonstrated need. Put another way, notwithstanding the plaintiff’s strong moral claim, she has not demonstrated that she is unable to adequately provide for her own proper maintenance and support. Unfortunately, the existence of moral claim alone is not sufficient to found a claim under s.91 of the Act. It is beyond the power of the Court to rewrite the testator’s Will to conform with general consideration of fairness or just compensation. [70]

It follows that I am satisfied that, while the plaintiff made continued and considerable sacrifices to look after the deceased and ensure his life was comfortable and enjoyable, her claim for provision has no real prospect of success. [71]

Important outcomes from this case:

The decision in Wielicki v Millar highlights a number of matters that need to be at the forefront of your mind should you be considering a family provision claim:

Financial need is a critical threshold issue.
A strong moral claim, of itself, is insufficient.
The Court will not rewrite a Will based solely on fairness.

This article is general information only and does not constitute legal advice.

Should you be considering making a family provision claim you should seek advice and guidance from Bentleys Law.

Bentleys Law has extensive experience in Estate Law and can guide you through the complexities of the Administration and Probate Act 1958 and the inevitable legal issues that will arise in family provision matters.

Note: Square paragraphs shown this way [ ], represent the relevant paragraph numbers in the case: Wielicki v Millar [2026] VSC 12

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