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Family provision claim results in $400,000 win for de-facto partner

A man has successfully won a family provision claim against the estate of his de-facto partner, after she failed to include him in her original will.

The woman, who died in 2013, left over $900,000 worth of assets, including a NSW-based property valued at $510,000 and bank accounts totalling more than $309,000.

In her will, she divided her estate between friends, various charities, an ex-husband and her de-facto partner’s son. However, it was revealed in NSW Supreme Court that the will was written in 2007 at a time when the deceased and the plaintiff were separated due to her alcoholism.

The pair eventually reconciled and began residing with each other once again, although the woman later moved out to care for her mother, who died in 2009. The death caused the woman to relapse into drinking, leading to significant health issues.

By 2010, medical practitioners deemed her unable to make rational lifestyle choices and advised she be moved into a care home. This decision was later revoked and the woman returned to living with her de-facto partner.

According to court documents, the couple were “happy in each other’s company” and often engaged in social activities together, including membership of a local bowling club.

Family provision claim

The deceased’s executor, a family friend, initially denied the pair were de-facto partners, but the courts described the plaintiff’s evidence on the subject as “reliable”.

As such, the judge ruled in the partner’s favour, awarding him $400,000 from the estate. This took into account that the man was 60 years old, unemployed and suffered disabilities that prevented him from working.

“The plaintiff was the only person close to the deceased who was present at the hospital when she died. In fact, when she died, he was the only person with whom she had a close emotional relationship,” Justice Michael Pembroke stated.

“In the circumstances, including the shared history and the plaintiff’s financial position, I have concluded that the deceased had a moral duty to provide for him by her will.”

Justice Pembroke also pointed to the fact the man had supported the deceased financially in the beginning of their relationship, as well as providing substantial care for her after she was released from an alcohol rehabilitation facility.

The money is likely to go towards a two-bedroom house in Pottsville, with enough left over to cover ongoing living expenses. The remainder of the deceased’s assets was divided according to the original will.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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