De Facto partner awarded half estate after contesting a will

Published 27 May 2015

Author: Garbis Kolokossian

Chandler v Coulson [2015] NSWSC 172 – Pembroke J

Mr Chandler is the Plaintiff in this matter. He was in a de facto relationship with the deceased at her death. The deceased is the late Susan Malins. Mr Coulson is the Defendant and executor of the will in the proceedings. Mr Chandler is contesting a will of the late Susan Malins.

The Plaintiff approached a wills disputes lawyer in order to determine how to contest a will.

Initially no provision was made for Mr Chandler in the will of Ms Malins. His Honour was satisfied at the outset that a wise and just testatrix would have made some provision in their will. The will being referred to was dated 2 October 2007, 6 years before date of death. The will divided Ms Malins estate amongst her ex-husband, friends, charities and Mr Chandler’s son, Timothy. The net value of the deceased estate was valued at $837,000.00. The proceedings were a process of contesting a will.

The Plaintiff

Mr Chandler is 60 years old and unemployed. He receives a disability pension of $375.85 per week, has no superannuation and few assets. He suffers from back and neck pain which affects his ability to work. He is the father of three children, all of whom have modest incomes and are unable to provide support to him.

Relationship between Plaintiff and Deceased

The two met in 1999 and commenced a relationship. The deceased purchased a property for her, Mr Chandler and Timothy in 2000. They lived together until 2006. At this time Timothy moved out of home and Ms Malins developed alcohol problems. This eventually drove Mr Chandler to separate with Ms Malins.

Shortly after this, Ms Malins alcohol problems increased dramatically to the point where she was admitted to hospital. The deceased’s mother called Mr Coulson who helped her out of hospital and helped her settle in with her mother in Melbourne. It was at this point when the deceased made her will, leaving Mr Chandler out of it and appointing Mr Coulson as her Power of Attorney.

In 2008 Mr Chandler and Ms Malins reconciled and Mr Chandler moved in with the deceased at her mother’s home in Melbourne. The mother died in 2009, leaving an estate of approximately $800,000.00 to the deceased. Once again the deceased’s alcohol consumption increased and she was hospitalised a number of times. She also began facing serious health problems.

Throughout 2010 the deceased was in and out of hospital. Mr Chandler would be in constant contact with her and would constantly visit her. Upon being discharged she and Mr Chandler were living together and he became her carer. He began receiving a Carer’s Pension from the Department of Human Services. Mr Chandler was the deceased’s primary carer until the date of her death on 30 November 2013 and was the only person who was present at the hospital when she died. It was this relationship with the deceased that put Mr Chandler in a position to be contesting a will, the will the deceased left in 2007.

Orders

It is important to note the history of the relationship between the Plaintiff and the deceased as this was the primary reason Pembroke J decided that a provision should have been made for Mr Chandler. As a result of his history with the deceased, and his current financial position, Mr Chandler was deemed to be a person who can contest a will.

It is also important to understand the financial position of the Plaintiff, as he is clearly in need.

Accordingly, it was found that adequate and proper provision was not made.

His Honour made an order for Mr Chandler to be awarded $400,000.00. He made orders for this to be borne proportionately by all beneficiaries named in the will.

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