Ex-wife Obtains $200,000.00 Order for Provision Milewski v Holben [2014] NSWSC 388 Estate Dispute Lawyer Sydney

October 12, 2023


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A former spouse was awarded $200,000 from her ex-husband’s large estate despite no financial provisions in the will and both parties having moved on to other partners and marriages long before the deceased’s death.

What does this mean for ex-spouses and estate law?

In the Milewski matter, the plaintiff ex-wife was required to prove that there were factors warranting the making of an order for provision pursuant to Section 59 of the Succession Act 2006. There were several factors to the plaintiff and the deceased’s relationship that indicated she was deserving of family provision. The factors warranting an order for provision are considered on a case-by-case basis. A judgment was made based on “community standards of what is right and appropriate” (Andrew v Andrew (2012) 81 NSWLR 656). In this matter the court found continued communication and promises made by the deceased to be crucial in awarding a portion of the estate.


Adele Milewski and the deceased married shorty after meeting in 1988. The marriage broke down with a divorce being filed in 1995. The deceased made no financial provision for Milewski in his will.

The ex-spouses kept in contact over the phone sporadically and even spent a few days together despite the deceased moving on to marry his second wife, the defendant Lisa Holben, with whom he had two sons. Milewski acted as the deceased’s confidant and was even hopeful of a potential reunion. The deceased regularly made promises to make testamentary provision or to provide for her in “some way” financially.

The court considered that the deceased’s sizeable estate ($11 million) compared to the Milewski’s modest lifestyle and job insecurity in the United States positioned her favourably for an order for provision.

Milewski was five months late to making an application for family provisions because she was unaware of her rights. Under the Succession Act, eligible persons must apply for a family provision claim within twelve months of the deceased’s death. Lindsay J was required to determine whether an extension for this time limit be granted based on “warranting factors” and whether she was entitled to family provisions of her requested $230,000 (AUD).


The fact that the plaintiff engaged in relationships after her divorce from the deceased, was irrelevant since she clearly hadn’t “moved on” emotionally. The plaintiff and deceased maintained emotional ties, albeit sporadically. Further the court found that the deceased had provided reassurance of financial assistance upon his death to the plaintiff.

It was the continued emotional relationship coupled with the deceased’s repeated promises that were seen as crucial factors warranting award to the plaintiff.

The plaintiff was granted leave for an extension on her application, and an order provisions was made in the sum of $200,000.00 (AUD).

Where to now?

The court has a broad discretion in applying s 59 of the Succession Act –  Milewski is a good example of the application of this discretion.

In some cases, a divorced spouse may succeed in a claim for family provisions, however, you must demonstrate special circumstances, and guidance from an estate lawyer is necessary.

Please contact Carneys’ estate dispute lawyers if you wish to discuss a prospective application for provision from the will of deceased ex-spouse.