Recent case reveals how de facto relationships lead to contesting wills claims

Published 02 Feb 2016

Not all family relationships are black and white, which lead people to contest a will when an estate provision does not recognise these connections between people.

This is usually in cases where the deceased was in a relationship with someone that wasn’t verified through marriage or easily quantifiable such as being their child. Frequently, people who were in a de facto relationship with the deceased or their step child may be left out of an estate distribution.

In some cases, these people are able to contest a will by making a family provision claim, however, a recent case before the NSW Supreme Court revealed the value of making these relationships clear in the original will.

What can de facto partners use when contesting a will?

In a recent case, a person who was boarding in the house of the deceased contested their will on the grounds that their provision did not reflect the true state of the relationship. The plaintiff argued that they were much more than simply a housemates to the deceased and instead should be considered either a de facto spouse or – at the very least – a member of a close personal relationship.

Because they were not included in the will, the plaintiff had to prove to the courts that their relationship with the deceased extended beyond simply being a boarder in the person’s home.

The Judge noted that the difficulty in this cases stems from the fact that de facto relationships can’t always be judged to the same degree as a marriage, as there is no indication of further commitment – despite the fact that this may be the case.

The case was further complicated by the fact that the deceased had made reference to the plaintiff being “just a boarder” on some occasions, a statement the plaintiff rejects.

To prove their point, the plaintiff presented photos of the pair visiting relatives together, an act not normally associated with the standard owner/tenant relationships.

The Judge decided that, based on the nature of the relationship with the deceased, the plaintiff should be awarded part of the estate. In the end, the plaintiff was awarded around $85,000 after contesting the will based on the fact their relationship wasn’t accurately represented by the estate distribution.

To find out more about contesting a will, contact the team at Gerard Malouf and Partners.

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