Background to the Claim
This case was about how a court approaches what a former de facto wife might be allowed when the will of her de facto husband who died in 2021 aged 77 years left a will which was made in 2003. In that will he left his estate to his adult son and daughter. The executor of the will was the NSW Trustee and Guardian.
There was a complication. The claimant was under a legal incapacity, so her son acted as her tutor to manage the claim for her.
Who Can Make a De Facto Family Provision Claim?
For a claimant to be an eligible applicant for family provision, it was necessary to show that she was “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”:
The NSW Trustee held over $800,000 in financial assets after the sale of all estate assets.
The Succession Act does not define the term “de facto relationship”. However the Interpretation Act 1987 (NSW) defines it. It means having a relationship and living together as a couple without being married to one another.
The Estate’s Challenge
However, the Defendant [representing the estate] disputed that the evidence established that the claimant and the deceased had “a relationship as a couple living together”. The Succession Act sets out a number of elements of a de facto relationship including duration, the nature and extent of their common residence, financial dependence, mutual commitment to a shared life, care and support of children, household duties and so on.
How the Court Assesses a De Facto Relationship
In a case decided in 2020 Justice Hallen of the Supreme Court of NSW described the list of issues as inclusive but not exhaustive, with none of them being of decisive significance, noting that all of them, however, he added that the list “suggest[s] a continuing course of conduct and behaviour, not an event at a fixed point in time”. His Honour said the criteria should assist in determining whether the parties were in “a relationship as a couple”
The Court’s Decision
From His Honour’s viewpoint the overwhelming weight of the evidence together with documentary evidence such as the various family photographs and the funeral notice, supported the conclusion that they had a relationship living as a couple together.
In particular, the evidence establishes that the deceased provided the claimant with domestic support and personal care, which included showering her, ensuring she took her medication, taking her to appointments, and performing household chores. Both sides also accepted that she lived with the deceased rent-free from when she moved into the unit. She continued living there until after his death in 2021. The deceased and the claimant also shared a bedroom from the time she began living there.
Why Older Couples Should Get Advice on Their Wills
So it is clear that older couples who live together should get legal advice when making their wills. This helps them avoid the legal traps.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Rodney Lewis, Special Counsel
