From our Melbourne office, Attwood Marshall Lawyers Estate Litigation Associate Lily Prasad examines a Victorian Supreme Court case in which a surviving spouse’s claim for further provision from her husband’s estate was dismissed – despite an 18-year marriage and years of care.
When a long-term spouse is left out of a Will entirely, the assumption is that the law will step in and allow a claim against the estate for further provision. In many cases, it does.
But a recent Victorian Supreme Court decision shows how the courts will not simply rewrite a deceased person’s Will based on what it or society considers to be “fair” or morally “right.” For a surviving spouse to succeed in a claim for further provision (as is the case with all applicants or beneficiaries), they must demonstrate a genuine financial need.
It also shows that where the facts support it, claims can be successfully defended.
In this case, the plaintiff was a medical professional who had stepped back from her career to care for her ailing husband. When he passed away, she received nothing under his Will. She made a claim for further provision, yet the court summarily dismissed the action because she was, by any measure, financially secure.
Case study: Wielicki v Millar [2026] VSC 12
Paul Guziak died in May 2024, survived by his wife of 18 years, Michelle Wielicki, and his adult daughter from a previous relationship, Karina Millar. His Will was made in May 2006, the same year he married Michelle. In it, he appointed Karina as sole executor and trustee and set up a testamentary trust of which Karina was the primary beneficiary. Michelle received nothing.
According to the judgment, the net estate was valued at approximately $1.6 million before legal costs and the costs of realising the estate’s assets.
Michelle filed a claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic). Karina responded with an application for summary judgment, arguing the claim had no real prospect of success.
A strong moral claim, but a comfortable financial position
Michelle told the Supreme Court of Victoria that she characterised her 18-year marriage as wonderful and loving. After the deceased suffered a stroke in 2009, she stopped working to care for him. She returned to work over time, but reduced her hours as his health worsened.
From 2020 until his death, she worked only two four-hour shifts per week. Her income was reduced by approximately half as a direct result of her caring responsibilities.
Both parties accepted that the deceased had a moral duty to provide for Michelle. The question was whether his estate had failed to adequately provide for her proper maintenance and support.
Michelle’s own evidence disclosed the following assets:
- An unencumbered home in Patterson Lakes valued at $2,650,000;
- Two investment properties with a combined value of $3,140,000;
- A superannuation interest in the form of a property generating $25,000 per annum in rent;
- A term deposit of $300,000; and
- A projected income of $330,000 in salary and $40,000 in rental income in the coming financial year, having returned to full-time work after the deceased’s death.
Her total disclosed assets – excluding superannuation – exceeded $6 million, substantially greater than the value of the deceased’s entire estate. Michelle did not dispute this. She said that while she was “far from destitute,” she “sacrificed [her] career and [her] considerable earning capacity” to care for the deceased while he was unwell, and that this sacrifice should count in her favour.
What the court must consider
Family provision law is broadly similar across Australian jurisdictions, though the specific legislation and time limits vary by state.
Click here to learn more about Family Provision Claims in QLD and NSW.
Under Victorian law, a court cannot make a provision order unless it is satisfied that the deceased had a moral duty to provide for the applicant’s proper maintenance and support, and the distribution of the deceased’s estate failed to make adequate provision for the applicant’s proper maintenance and support.
In assessing adequacy of the provision received under the Will, the court considers things like the nature and length of the relationship between the applicant and the deceased, the size of the estate, the applicant’s financial resources and needs, contributions the applicant made to the welfare of the deceased, and the impact any order would have on other beneficiaries.
A longstanding principle (drawn from Luciano v Rosenblum (1985) 2 NSWLR 65 and widely applied) holds that the highest moral obligation to a spouse is to leave them with secure accommodation, an income stream, and a fund to meet unforeseen contingencies. The court looks at whether those needs are already met.
Michelle’s counsel argued that ‘need’ is not confined to financial need, and that her sacrifices and contributions established the necessary need.
But while the judge agreed that the concept of need is not purely financial, some financial need must still be present. He said in his ruling, handed down 30 January 2026, that Michelle had made a strong claim for moral duty, but had not demonstrated a financial need for further provision.
The judge was satisfied that Michelle’s claim had no real prospect of success and that it wasn’t in the interests of justice to allow the matter to head to trial.
Karina’s application for summary judgment was granted, and Michelle’s claim for further provision was dismissed.
What this case tells us
This decision does not mean that financially comfortable spouses can never succeed in a family provision claim, even if it is a long term relationship and there was a strong caring history. Every case is assessed on its own facts, and adequacy is always relative – to the size of the estate, the applicant’s specific circumstances, and the competing needs of the beneficiaries.
What it confirms is that:
- Courts are less likely to make provision orders where an applicant’s assets and income already meet their needs; and
- Courts are not permitted to simply rewrite a Will to conform with the Court’s views of what is ‘fair.’
If you believe you have been inadequately provided for from an estate – or if you are defending such a claim – early legal advice is essential. Strict time limits apply, and the strength of any claim depends heavily on the specific facts and the legislative framework in your state.
This case is also a useful reminder that family provision claims can be successfully defended. Executors and beneficiaries are not obligated to simply accept a claim and negotiate a settlement. Where the facts support it – as they did here for Karina Millar – applying for summary judgment can be an efficient and effective way to resolve a claim without the time and cost of a full trial.
Attwood Marshall Lawyers acts for both claimants and estates in family provision disputes, and early advice for executors and beneficiaries is just as important as it is for those considering making a claim.
Attwood Marshall Lawyers – expert advice on estate disputes and family provision claims
Succession law and contesting Wills are complex areas where the outcome can turn on technical legal requirements as much as the merits of any moral claim.
For expert advice on your rights in estate disputes, please contact our Estate Litigation Department Manager, Georgia Trapp, on direct line 0498 499 122, email gtrapp@attwoodmarshall.com.au or call 1800 621 071 any time.
If you have complex family circumstances or assets, receiving advice about the most suitable way to structure your estate can mitigate the risk of claims being made by eligible people you may wish to exclude from your Will.
For all your estate planning needs, please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.
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