Woman pursues family provision claim as de-facto spouse

Published 27 Mar 2018

Contesting a will in NSW is only possible if you are an eligible person under the state’s Succession Act 2006. The legislation allows spouses of the deceased – including de-facto spouses – to make family provision claims.

Establishing the existence of a de-facto relationship is often more difficult than proving a marriage, as there is usually less supporting documentation.

One woman recently took her family provision claim to the state’s Supreme Court in order to convince a judge that she was the de-facto spouse of a deceased male colleague. But did she succeed?

What was the plaintiff’s relationship to the deceased?

The plaintiff and the deceased began working together at Yass Youth Centre in 2007. They began a romantic relationship approximately one year later, but the executors of the man’s estate disputed the nature, duration and strength of this relationship.

The courts refer to the Family Law Act 1975 when ruling on de-facto spouse eligibility. The factors considered include:

  • The length of the relationship;
  • The couple’s living arrangements;
  • The existence of a sexual relationship;
  • Any shared financial obligations; and
  • How the relationship was presented in public.

While the plaintiff claimed she was a de-facto spouse of the deceased until he passed away in 2015, evidence from the defence suggested the couple had split in 2009 or 2010.

Conflicting evidence a factor in will contestation

The plaintiff relied heavily on her own testimony to support her claim. She said she and the deceased lived together, regularly attended social events as a couple and had discussed marriage and children.

However, the defendant – the deceased’s brother and executor of the estate – provided testimony from a number of the man’s friends who disputed the plaintiff’s version of events.

One neighbour confirmed the deceased had been forced to lock his gate and call the police on the plaintiff after she continued showing up at his property following an acrimonious split.

Furthermore, Justice Philip Hallen noted the plaintiff and the deceased:

  • Did not have any shared financial accounts or property holdings;
  • Did not have life insurance in each other’s names;
  • Had not disclosed a de-facto relationship to relevant authorities; and
  • Maintained separate health cover.

Other than one colleague, the plaintiff was unable to provide evidence from friends, relatives, shared acquaintances, co-workers or other witnesses who could confirm the couple were de-facto spouses.

Was the inheritance dispute successful?

Justice Hallen said the plaintiff had not proven she was in a de-facto relationship with the deceased immediately prior to his death. Nevertheless, the plaintiff possessed a driving licence proving that she had lived with the deceased in 2010.

Under the Act, she was therefore eligible to make a claim as someone who was partly or wholly dependant on the deceased and lived as part of his household. But Justice Hallen dismissed the woman’s claim for family provision, stating there were no factors warranting her receiving a share of the man’s estate.

The plaintiff may have been unsuccessful in this claim, yet the result shouldn’t discourage de-facto spouses from pursuing an inheritance dispute if their loved one has left them out of the will.

Please contact Gerard Malouf & Partners Will Dispute Lawyers for a free consultation regarding your circumstances.

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