Contesting a Will as a De Facto Partner in NSW

Introduction

Contesting a will as a de facto partner in New South Wales can be a complex and emotionally challenging process. Understanding the legal landscape and your rights is crucial, especially when navigating the intricacies of proving your relationship and establishing eligibility to make a claim.

This guide provides essential information and practical guidance for de facto partners seeking to contest a will in NSW. It covers key aspects such as proving the existence of a de facto relationship, demonstrating inadequate provision, and understanding the legal considerations courts evaluate during such disputes. Whether you’re seeking to challenge an unfair will or simply need clarity on your legal standing, this comprehensive guide offers the insights and support you need.

Understanding De Facto Relationships in NSW

Key Factors to Prove a Genuine De Facto Relationship

A de facto relationship in NSW is a relationship between two adult persons who are not married or related by family but live together as a couple. This relationship must have a marriage-like character to be recognised under the law. 

To establish a genuine de facto relationship, several factors are considered. This includes the duration of the relationship, common residence, financial interdependence, mutual commitment, care of children, household responsibilities and public recognition.

Importance of Relationship Status at the Date of Death

The status of the de facto relationship at the time of the deceased’s death is crucial for determining eligibility to contest a will. The relationship must be established as ongoing and genuine at the time of death.

This requirement ensures that the claim is based on a valid relationship that was active until the deceased’s passing. In Lawrence v Martin [2014] NSWSC 1506, the court emphasised that maintaining the relationship status at the time of death was critical for the de facto partner’s eligibility to contest the will.

By understanding these factors and their significance, individuals can better navigate the legal requirements for contesting a will as a de facto partner in NSW. The courts will carefully examine all evidence to ensure the relationship meets the necessary criteria for recognition under the law.

Contesting a Will as a De-Facto Partner

Establishing Eligibility to Contest the Will

To contest a will as a de facto partner in NSW, you must first establish your eligibility under the Succession Act 2006 (NSW). This involves proving that you were in a genuine de facto relationship with the deceased at the time of their death. Establishing the relationship may or may not be a complicated task, depending on the available evidence.

The court considers several factors to determine the legitimacy of your relationship, taking all circumstances into account; it is not a mere box-ticking exercise, and not all factors will be relevant in every relationship. The key question is whether the two adult persons were “living together as a couple.” Factors include:

• Duration of the relationship: How long you and the deceased were together.
• Common residence: Whether you lived together and the extent of your shared living arrangements. “Living together as a couple” does not strictly mean always living in the same house.
• Financial interdependence: Any financial support, joint financial arrangements, or the ownership, use, and acquisition of property.
• Mutual commitment: Evidence of a shared life, which requires a genuine commitment to a relationship that is, in the eyes of the court, equivalent to marriage. This commitment must be mutual and must not have ended before the deceased died.
• Care and support of children: If you had children together or shared caregiving responsibilities.
• Public aspects of the relationship: How you presented your relationship to others, such as on social media or in public settings.
• Performance of household duties: The division and performance of household tasks.
• Sexual relationship: Whether or not a sexual relationship existed. However, no particular finding regarding any single factor, such as the existence of a sexual relationship, is absolutely necessary to prove the relationship.

It’s also important to note that the non-existence of a will (intestacy) is not a bar to a de facto partner claiming provision, although the duration of the relationship can have special status in intestacy scenarios.

Demonstrating Inadequate Provision or Exclusion in the Will

Once eligibility is established, you must show that the will left you with inadequate provision, or that you were unfairly excluded. This means the inheritance provided, if any, does not adequately meet your financial needs and moral claims, considering all circumstances. Family provision claims by a de facto partner often involve contested interests, typically between the de facto partner and the deceased’s child or children from a former relationship.

The court will evaluate a range of factors to determine if the provision was inadequate and what amount, if any, should be awarded:

• Financial contributions: Any contributions you made to the deceased’s estate or welfare, both financial and non-financial.
• Financial needs: Your current financial situation and future requirements, including your age, health, any special needs, or any physical, intellectual, or mental disability.
• Estate value: The total value of the deceased’s assets.
• Other beneficiaries: The financial circumstances and needs of other parties benefiting from the will or entitled on intestacy.
• Relationship with the deceased: The nature and duration of your de facto relationship.
• Deceased’s moral obligation: The deceased’s responsibilities or moral obligations to provide for you and other eligible persons.
• Maintenance during deceased’s life: Whether you were being maintained, wholly or partly, by the deceased before their death.
• Provision made outside the will: Any provision made for you by the deceased before or after death, such as joint assets already transferred to you or benefits from life insurance or superannuation (noting these don’t automatically form part of the estate but are considered).
• Support from other persons: Whether any other person is liable to support you.

As seen in Lawrence v Martin [2014] NSWSC 1506, demonstrating that the will’s provision was insufficient is crucial. In that case, the court considered significant joint assets that passed to the surviving partner outside the will, as well as superannuation benefits, when assessing the adequacy of provision. The court may order a larger share of the estate if they find the original provision inadequate, ensuring a fair outcome based on the unique circumstances of the case. Ultimately, claims are assessed on a case-by-case basis, considering a wide range of factors and the specific details of each situation.

Legal Considerations & Court Factors in Will Contests

Factors the Court Evaluates in Will Contests

When deciding on family provision claims, the court examines a range of factors to determine whether the provision made in the will is adequate. These factors include:

• Nature and value of the estate: The court assesses the overall value of the deceased’s assets to understand the context of the claim.
• Duration and nature of the relationship: The length and quality of the relationship between the de facto partner and the deceased are considered. Longer relationships often indicate a stronger moral obligation.
• Financial contributions: The court evaluates any financial support provided by the de facto partner to the deceased, such as contributions to the family home or shared assets.
• Age and health of the de facto partner: The court considers the age, health, and financial circumstances of the de facto partner to assess their needs.
• Prior arrangements made by the deceased: Any gifts or transfers made during the deceased’s lifetime are reviewed to ensure fairness.
• Moral obligation: The court assesses whether the deceased had a moral duty to provide for the de facto partner, considering the relationship’s commitment and interdependence.

In Lawrence v Martin (2007), the court balanced these factors to determine a fair award for the de facto partner. They specifically examined the long-term relationship, financial interdependence, and the deceased’s intentions before making their decision. 

The Role of Estate Lawyers & Seeking Legal Advice

Engaging experienced estate lawyers is crucial when contesting a will. Legal experts can help navigate the complexities of family provision claims in several important ways.

First, they ensure thorough preparation of the claim by gathering all necessary evidence and documentation to support your position. This comprehensive approach strengthens your case from the beginning.

Additionally, estate lawyers provide valuable services by:

• Arguing the case effectively: Presenting the moral and legal arguments to demonstrate why the provision in the will is inadequate.
• Negotiating settlements: Exploring out-of-court settlements to avoid prolonged legal disputes.
• Providing strategic advice: Guiding clients on the best approach to achieve a favourable outcome.

Expert legal advice can significantly influence the court’s decision, ensuring the de facto partner’s rights and needs are appropriately addressed. For more information on NSW Will Disputes, check out our article outlining Mediation in NSW Will Disputes.

Conclusion

Contesting a will as a de facto partner in New South Wales involves navigating a complex legal landscape, requiring the establishment of a genuine de facto relationship and demonstrating that the provision made in the will is inadequate. The court considers various factors, including the nature of the relationship, financial contributions, and the moral obligations of the deceased. Understanding these legal principles is essential for anyone considering a family provision claim.

If you are a de facto partner seeking to contest a will, it is crucial to act promptly and seek expert legal advice. Contact PBL Legal, specialists in domestic wills and estate planning in NSW. Our experienced estate lawyers can guide you through the process, ensuring your rights are protected and your claim is presented effectively. With our expertise, you can navigate the complexities of contesting a will with confidence and achieve a fair resolution.

Frequently Asked Questions