De facto partnership leads to successful family provision claim

Date: Mar 11, 2015

De facto partnerships are an increasingly common part of Australia's social fabric, and therefore have also become a common feature in estate disputes. While these relationships are legally recognised, they can often end in a legal dispute as those who were in a de facto partnership with the deceased are required to prove their relationship.

In a recent case before the NSW Supreme Court, the question of whether a couple qualified as being in a de facto relationship formed a significant element of a man's family provision claim.

The case began after a woman passed away in late 2013. The woman had a will in place, however, there was no provision included for her partner, with the bulk of her estate left to other beneficiaries. This was despite the fact the man was the woman's primary caregiver in the final months of her life and the two had commenced their relationship in 1999.

As a result, when the woman passed away, the executor began the process of distributing her estate according to the conditions laid out in the will, including the sale of the house the pair jointly occupied. This in turn led the deceased's partner to seek a family provision claim in order to purchase another property.

In order to demonstrate the validity of his claim, the man needed to establish that the relationship was ongoing before the deceased's passing. He was also required to detail his own financial position in order to demonstrate that the lack of provision contained in the will didn't provide for his ongoing maintenance. 

The courts were satisfied with the man's testimony regarding the duration and nature of his relationship with the deceased. They were also content that his financial position - especially the fact that he and the deceased were cohabiting - meant that he ought to receive a share of her estate.

While this much was confirmed by the Supreme Court, the man's original claim that he receive either the property in full or the equivalent value from the estate was rejected. Instead, the man was awarded a provision from the estate equal to roughly four-fifths the value of the home. The remaining portion of the estate was then distributed according to the calculation included in the will.

For anyone who was in a close personal relationship with a deceased person, this case highlights how important it is to consider a family provision claim, especially in cases where property is owned wholly by one party. 

If you want to learn more about when a family provision claim can be undertaken and what the process for this will be, make sure to discuss this with a wills and estates lawyer.