Definition of de facto relationship explored by NSW in recent family provision case

Published 05 Nov 2013

A New South Wales Supreme court case that wrapped up on November 5 explored the intricacies of defining a de facto relationship after the plaintiff argued she should hold that title, and receive a part of the estate.

In the family provision claim, Margaret Vidler argued that she was living in a de facto relationship at the time of Brian Harold Ivimey’s death. However, one of the children of the deceased, which he had in a previous marriage, argued Vidler should not have the title and should not receive her part of the estate.

Roy Charles Ivimey, one of three children of the deceased, was the executor appointed to handle his father’s will.

The court stated that because the case centered on whether Vidler was, in fact, in a de facto relationship at the time of the deceased’s death, it was relatively short, and only required a cross examination of Vidler, Ivimey and his sister Wendy.

The judge stated that once the facts of the case were presented, the real dispute was whether “adequate provision for the proper maintenance, education or advancement in life of Margaret, has not been made by the Will of the deceased.”

This was the true question, as the judge determined quickly Vidler was eligible to be in a de facto relationship with the deceased.

Arguments against the family provision claim

When Vidler made the claim, Roy Ivimey contended that his role in making the will of the deceased was “adequate and proper in all circumstances” and her summons should be dismissed.

However, the judge stated that since she had de facto status, the question would be how much should be awarded to her, based on her earnings and what kind of funds she would need for the rest of her life.

After considering Vidler’s hospital, medical and pharmaceutical benefits, transport concessions and council rate discounts, the judge arrived at an appropriate amount.

“An amount of nearly $40,000 per annum, by way of income, should be sufficient to enable her to live in a reasonable degree of comfort, and free from any financial worries,” he wrote in the summary of the case.

There are dozens of variables in family provision cases, so it’s best to get in touch with a contesting wills lawyer to learn all your options.

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