NSW Supreme Court addresses family provision claim of de facto spouse
Published 20 Nov 2013
A recent case that went to the New South Wales Supreme Court looked into a family provision claim filed by the de facto spouse of the deceased.
The court looked into several factors to determine the outcome of the claim, including whether the plaintiff was in fact a de facto spouse of the deceased at the time of death and whether this person was dependent on the deceased.
The plaintiff, Tung Thang Vo, filed the family provision claim to earn what he said was his rightful share of the estate of Amanda Van, who died on November 2, 2010. He asserted he was the de facto spouse of Ms Van, and was also partly dependent on her at the time of her death.
While it may seem like a standard family provision claim, the presiding judge said it “abounds with problems”, and that several issues arose during the process.
Problems with the claim
The court had to look into whether the claim was filed on time, and if it wasn’t, if a time extension should be granted.
It also assessed whether the plaintiff was the de facto spouse as he claimed, and if he wasn’t at the time of her death, whether he was at any particular time in their relationship.
The judge stated that if the plaintiff was not the de facto spouse at the time of Ms Van’s death, but was in fact dependent on her, it would require a thorough understanding of whether there were factors that may have made it unnecessary to file the claim.
From here, the judge would be able to decide whether a provision should be made for Mr Vo, and if so, what that provision would be.
After reviewing all the facts, the judge said that the deciding factor was that the plaintiff was the father of the child the two had during their relationship.
The judge said if it weren’t for this, he “would not consider he had any legitimate claim on the estate of the deceased or, in another expression, that the deceased failed in a moral obligation to make proper provision for him.”
The case shows how many factors can go into deciding a family provision claim, and why it’s necessary to get in touch with contesting wills lawyers who are familiar with such cases.