All jurisdictions in Australia provide statutory rights for eligible persons to contest an unfair Will if they can show that that have been left without adequate provision by the testator.

In New South Wales, an eligible person includes a spouse, de facto partner, or child (of any age) of the deceased. An eligible person may also include a former spouse and certain persons who were partly or wholly dependent upon the deceased or living in a close personal relationship with the deceased at the time of his or her death.

If a family provision claim is successful, the Court can order an adjustment to the terms of the Will to satisfy the claim.

When contesting a Will, a de facto partner must first establish the existence of the de facto relationship with the deceased, then show that he or she was left with inadequate provision. Claims are assessed based on a range of factors and the unique circumstances of each case.

What is a de facto relationship?

It is generally expected that testators have a moral duty to provide for the proper maintenance and support of their spouse or de facto partner. A de facto relationship exists where a couple of the same or opposite sex and who are not legally married or related by family, live together in a genuine domestic relationship.

Factors considered in establishing a ‘genuine domestic relationship’ include the length of the relationship, the care and support of children, the nature and extent of a common residence, the existence of a sexual relationship, financial interdependence, property acquisition and ownership, and the public perception of the relationship.

Not all factors are relevant in every relationship.

What must an applicant prove in a family provision claim?

An applicant must prove that, at the time of considering the application, he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life. A claim may be made because the applicant was completely left out of the Will or that, in light of the applicant’s financial needs, the inheritance proposed is insufficient to support those needs.

A range of factors are considered including the deceased’s moral obligation to provide for the applicant, the value of the estate and the competing financial needs of other entitled persons.

Family provision claims by a de facto partner typically involve contested interests between the de facto and the deceased’s child or children from a former relationship. In such cases, the Court pays attention to:

• the length of the de facto relationship;
• the respective financial and non-financial contributions of the applicant and the deceased to the estate assets;
• the personal circumstances of the de facto such as his or her education, employment, age, health and special needs;
• the financial position and financial needs of the applicant;
• the personal circumstances, financial position and financial needs of the deceased’s children or other beneficiaries;
• whether there were joint assets already transferred to the applicant after the deceased’s death;
• whether the applicant benefited from the deceased’s life insurance or superannuation payments (which do not automatically form part of the estate).

Case study                                                        

Lawrence v Martin [2014] NSWSC 1506 considered a claim by a de facto partner who had been left out of the deceased’s Will. Although their relationship had lasted for 16 years, the deceased had not updated his Will since divorcing his former spouse in 1999. The Will left his entire estate to his (then) spouse, and then to his two sons of that marriage. The effect of the divorce was that the wife was precluded from benefiting under the Will. Consequently, his estate worth around $1.6 million, was left equally to his sons.

On the testator’s death, the applicant received a life insurance benefit of $229,000 and the interest in their jointly-held family home was transferred to her sole name. The home was worth around $1.5 million with a mortgage of $78,000.

The applicant claimed provision of $660,000 from the estate and the Court took account of the following:

• that the applicant had already received a substantial life insurance benefit and the transfer of the family home into her name;
• that the applicant had made substantial financial contributions to the family home and assets of the deceased;
• that the applicant and the deceased were interdependent financially;
• that the relationship was genuine and long lasting with the applicant making substantial contributions towards the deceased’s welfare;
• that the applicant, aged 60, would likely cease work over the ensuing years resulting in a substantial reduction in income;
• although in reasonable health, the applicant suffered some limitations due to neck, back and shoulder issues;
• the intentions of the deceased which declared a desire to leave each of his sons a house;
• the financial position and needs of each son, one of whom suffered a bipolar condition making it difficult to sustain long-term employment, as well as other health issues.

In balancing the competing needs between the applicant and the sons and in consideration of all the circumstances, the applicant was awarded $350,000.

What if there is no Will?

When a person dies intestate (without leaving a Will), the estate is distributed according to a statutory formula set out in legislation. The distribution follows the deceased person’s next of kin and the priority is generally the spouse and children (if any). As a ‘spouse’ includes a married or domestic partner, the non-existence of a Will is not a bar to a de facto partner claiming provision from an intestate estate.

Conclusion

A de facto partner is eligible to make a family provision claim. Such claims may be that he or she was completely left out of a Will, or the proposed distribution under the Will is insufficient in the circumstances.

Where possible, family provision claims should be settled out of Court as the cost of running a case can significantly deplete the estate assets.

To reduce the possibility of a family provision claim it is important to obtain good legal advice when preparing your Will and to ensure that your Will is regularly reviewed.

If you or someone you know wants more information or needs help or advice, please contact us on 02 8325 1520 or email info@cappellorowe.com.au.