Lodger fails to increase share of friend’s estate after contesting will

Published 11 Nov 2017

A man who lived as a lodger with a close family friend for 11 years has been unable to persuade the NSW Court of Appeal that he was her de-facto partner.

The man won’t go away empty-handed, however, as he had already been awarded $85,000 from the deceased’s estate when he originally contested the will in 2015.

In the first trial, the plaintiff attempted to convince the judge he was an eligible person to pursue an inheritance dispute on three separate grounds under the Succession Act 2006:

  1. The plaintiff and the deceased were de-facto partners;
  2. He was wholly or partly dependent on her while he was living with her; and/or
  3. They were in a ‘close personal relationship’ at the time of her death.

The trial judge rejected the first and second claims but conceded that evidence suggested they were close friends in the year’s leading up to the deceased’s death.

Why did the plaintiff appeal?

The man launched an appeal claiming that the judge had erred in his decision by not finding that the pair were de-facto partners.

He hoped to be awarded the deceased’s property in Forster, where the two had lived prior to her passing away. The appellate judges considered the appeal, but they found little merit in the man’s case.

While various witnesses supported the man’s claim that he and the deceased were de-facto partners, many admitted upon cross-examination that they weren’t fully aware of the pair’s living arrangements. For example, no sexual relationship existed between the two and they slept in separate bedrooms. They also did not share finances or send birthday or Christmas cards to each other.

Medical documentation and Centrelink forms showed that the man had repeatedly listed his relationship status as ‘single’ in the years he was supposedly in a de-facto partnership. Significantly, the deceased signed a Domestic Relationships Agreement in 2011 – three years prior to her death – that denied the two were de-facto partners.

The appellate judges therefore saw no reason to overturn the original judge’s decision, resulting in the residual estate being passed on to the deceased’s nieces and her twin brother.

Seeking help from contesting wills lawyers

This case highlights the importance of seeking experienced legal advice from expert contesting wills lawyers.

The man represented himself in court in an ultimately unsuccessful claim. Given the right guidance, he may have won a further settlement or avoided pursuing the inheritance dispute if his lawyers saw little chance of success.

If you would like to discuss a family provision claim, please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.

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