How a de facto relationship is determined in contesting wills cases

Published 28 Feb 2014

Under the Succession Act 2006 (New South Wales), a wide range of people are eligible to contest a will.

These include your spouse, children, dependents, ex-spouse and de facto partner (to name a few).

A recent contesting wills case that was heard by the Supreme Court of New South Wales centered on a de facto partner who, along with the deceased’s two children, brought a family provision claim under the Succession Act 2006.

On August 23, 2013, it was found that Natasha Kourea was, in fact, the de facto partner of Albert Frisoli (the deceased), and had been for at least two years prior to his death. As a result, the Supreme Court of New South Wales declared that both Natasha and Mr Frisoli’s two children – Holden and Atlanta – were within their rights to get in touch with a contesting wills lawyer and put together a case.

Once this had been decided, the judge looked into Mr Frisoli’s estate and notional estate (which consisted of his family trust and superannuation fund) to determine whether or not he had adequately provided for both his de facto partner and his two children.

The Supreme Court of New South Wales ruled this had not been the case, and so opted to award Natasha, Holden and Atlanta provision out of the deceased’s estate and notional estate. Natasha was granted an impressive 50 per cent of her de facto partner’s assets, while Holden and Atlanta were given 25 per cent each.

How de facto partners can go about contesting a will

It’s clear from the above case that, when it came to deciding whether Mr Frisoli had been in a de facto relationship with Natasha, the Supreme Court of New South Wales didn’t simply take Natasha’s word for it.

The judge had to determine if she was Mr Frisoli’s de facto partner before he could rule Natasha was eligible to contest the deceased’s will. In such cases, the Supreme Court of New South Wales will consider a number of factors:

– How long the relationship lasted for (in this case, more than two years)

– Whether or not the couple lived together

– Whether a sexual relationship existed

– If they were mutually committed to a shared life

– How the couple presented their relationship in public

– To what extent they were financially dependent or interdependent

– How they shared the care and support of children, if any.

If you can demonstrate that your relationship with the deceased ticked all these boxes, you may be eligible to contest a will.

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