Wielicki v Millar [2026] VSC 12 (30 January 2026)
In this recent decision, the Supreme Court of Victoria considered a claim by a spouse who sought provision from her late husband’s estate after his final Will, made in 2006, excluded her.
Dr Michelle Wielicki, a local medical practitioner, formed a relationship with Mr Guziak about a year after her first husband died. They later married in 2006.
Mr Guziak suffered from significant health issues, and for many years Dr Wielicki acted as his primary carer. In doing so, she incurred substantial economic loss by reducing her working hours and limiting her earning capacity.
Facts:
- Dr Michelle Wielicki described their marriage as ‘wonderful and loving’.
- Mr Guziak was diagnosed with severe heart problems in 2004. After a stroke in 2009, he was severely disabled and could no longer see or speak properly and had trouble keeping balance.
- Initially, Dr Wielicki left her job to act as a full-time carer for her husband. She later returned to work (reduced hours) so that she was available to assist her husband.
- Mr Guziak’s health continued to decline and he died of heart failure in 2024.
- Mr Guziak’s daughter from a previous marriage Karina Millar, and also the executor of her late father’s estate, was the main beneficiary of her father’s 2006 Will.
- Dr Wielicki received nothing and made a claim on her spouse’s estate.
- Dr Wielicki’s financial position was stable, she owned several investment properties and was renumerated well as a medical practitioner.
- However, she had sacrificed considerable income to be a carer from Mr Guziak.
Decision:
- Firstly, Dr Wielicki, as spouse is an eligible person to make a claim for provision.
- However, a Court must not make a family provision order in favour of an eligible person 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 pursuant to his Will, fails to make adequate provision for the proper maintenance and support of the eligible person’.
- The Court decided that Dr Wielicki has a strong claim on the basis of the deceased’s moral duty but has not demonstrated need that is, she has not demonstrated that she was unable to adequately provide for her own proper maintenance and support.
- This was determine by the modest size of the estate, which was not of a higher value than the plaintiffs’ own assets and income.
- The claim was dismissed and the Will was confirmed as it was.
Comment:
- It is unusual for a spouse not be to awarded compensation if they are left out of their spouses’ Will.
- This case highlights the need to consider the surviving spouse’s financial situation and the size of the deceased’s estate, before presuming a successful claim can be made.