Wife of 18-years Unsuccessful in Challenging Will
Succession law has developed throughout Australian jurisdictions to recognise the primacy of a long-term spouse under a Will or intestate (no will) estate. This assumption is consistent with developing social norms and expectations over time, which the Succession Act QLD (1981) recognises as a “moral duty” that every will-maker has.
Despite this, family provision is a nuanced area of law which affords a broad discretion to Judges to weigh competing factors in an applicant’s claim. The practical upshot of this is:
- No single factor is determinative;
- there is no hierarchy or factors (financial circumstances, spousal status, health, disability etc); and
- beyond the baseline “threshold” questions, there is no certainty in family provision claims.
The recent case of Wielicki v Millar [2026] VSC 12 reinforces the fact that if a claimant cannot exhibit a level of need (financial or otherwise), their claim will have no real prospects of success.
Wielicki v Millar
The case of Wielicki v Millar goes against the grain, as Mrs. Michelle Wielicki (the wife of 18-years) failed in her application for proper maintenance and support, as she failed to show financial need.
Wielicki v Millar was brought before the Victorian Supreme Court in January 2026, under the equivalent legislation to Queensland’s s41 of the Succession Act Qld (1981). The Executor of the Will was successful in seeking summary judgment to dismiss the application on the basis that it had “no real prospects of success”.
The Estate
Paul Guziak (the deceased) died leaving a last will dated 8 May 2006. Under that Will, the deceased left his estate, which was worth approximately $1.9m to his daughter from a previous marriage. He did not make any provision for his wife.
The Relationship
The widow and claimant Ms. Wielicki had commenced a relationship and lived together with the deceased since 2006. Ms. Wielicki worked as a General Practitioner in Frankston.
In Ms. Wielicki’s affidavit evidence, she deposed to:
- having a “wonderful and loving” relationship with the deceased;
- stopping work for extended periods of time to care for him; and
- selling her own property so that she could fund a vacation with him.
The evidence of a “wonderful and loving” relationship was not contested, and nor was the support and sacrifice that the claimant had given to the deceased, particularly in his later years.
Ms. Wielicki’s financial position
Ms. Wielicki described her financial position as stable and far from destitute. She deposed to owning:
- an unencumbered house valued at $2,650,000.00;
- two investment properties worth $3,140,000.00;
- a property in her Superannuation fund that generated rental income of $25,000.00 per annum;
- a term deposit of $300,000.00
Central to Ms. Wielicki’s claim was the argument that she had foregone a considerable amount of salary to care for the deceased in his periods of ill-health between 2007-2024.
The Summary Judgment Application
Section 63 of the Civil Procedure Act 2010 (Vic) contains the equivalent summary judgment legislation to rule 293 in the Uniform Civil Proceeding Rules 1999 (QLD). The key enquiry under the legislative regimes in both Victoria and Queensland, is whether the plaintiff has any “real” as opposed to “fanciful” prospects of success. While summary judgment plays a role in filtering unmeritorious and frivolous litigation, it is not intended to shut the door on plaintiffs where a cause of action may exist.
The Court’s Decision
Irving J held that:
[60] The plaintiff in this case, being the spouse of the deceased, is an eligible person to make a claim for provision under the Act. I repeat that, under s91(1) of the Act, the Court must not make a family provision order unless it is satisfied that:
- ‘At the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support’; and
- ‘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.
[64] “An assessment of adequate provision for a claimant’s proper maintenance and support is relevantly shaped by the conduct of the claimant to the testator during the testator’s life. The authorities caution, however, that although the deserts of a claimant are relevant, it is not the role of the Court to recast the testator’s will to provide a reward for the meritorious conduct of a claimant.”
“[70] 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 a moral duty alone is not sufficient to found a claim under s91 of the Act. It is beyond the power of the Court to rewrite the testator’s Will to conform with general considerations of fairness or just compensation.”
Significance of the Decision
Wielicki demonstrates that the question of financial need is indispensable for claimants in a family provision claim. While the considerations that guide a family provision claim have been described as a “melting pot”, it is apparent that some level of financial need is a threshold question for the success of any claimant.
It is apparent however that:
- the applicant does not need to be destitute or in dire financial straits;
- the “style of life” to which the claimant has become accustomed is a relevant consideration; and
- this is particularly so in large estates that can accommodate a larger distribution.
On the other hand, Irving J did not completely discount meritorious conduct of a claimant towards the deceased as a relevant factor to be weighed against all of the circumstances, but simply cautioned that: It is beyond the power of the Court to rewrite the testator’s Will to conform with general considerations of fairness or just compensation.”
How We Can Help
Here at Rostron Carlyle Lawyers, we can assist you in preparing and advancing your strongest possible case in a family provision claim. Michael Sing is an experienced commercial and estate litigation lawyer who can help you spot issues early on and avoid common mistakes in preparing evidence. Contact us for a confidential consultation.
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