De facto partner eligible to contest a will

Published 06 Aug 2014

When deciding who is eligible to contest a will, the Supreme Court of New South Wales will often consider the relationship between the plaintiff and the deceased.

While spouses and children are automatically eligible persons, the NSW Succession Act has also ruled that de facto partners should share the same rights as married couples. This means that individuals who were living in close, personal relationships with the deceased can easily make a family provision claim if not fairly provided for in the estate.

However, the Succession Act has not always been the defining document when deciding on contesting wills cases. Prior to 2006, the Family Provision Act 1982 was in effect.

This is an important consideration for some inheritance disputes, as any application relating to a death before 2006 may be determined under the 1982 Act.

On July 31 this year, the Supreme Court made its decisions regarding a case influenced by this situation. The deceased had passed away in 2004, and her de facto partner was judged under the Family Provision Act.

However, this did not alter his ability to claim on the estate, as it was proven that he had been in a close, personal relationship with the deceased for a full 15 years prior to her death.

Ultimately, the Courts found the primary reason that her partner had not been included in her will was that the document had been drafted more than decade before the two had met. In fact, the woman’s ex-husband was named as the sole beneficiary and, if he pre-deceased her, his children were to receive the entire estate.

When the woman passed away, her ex-husband had died some years before. His two children then renounced their interest in her estate, leaving the entire contents of the will to her only child instead.

The plaintiff then decided to contact contesting wills lawyers to gain his fair share of his partner’s estate. The Courts quickly agreed that the provision made for the man was not adequate, though some time had passed between the discovery of the will and his application.

After carefully considering all the factors related to the case, the Supreme Court decided in the man’s favour, awarding him half of the estate. However, this provision has been cut from $160,000 to $80,000 to cover the time the partner has already spent living rent-free in the deceased’s property after her death.

If you are considering contesting the will of a de facto partner, get in touch with a contesting wills lawyer today.

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