When someone dies, a de facto partner may be able to contest a Will in NSW if they believe the deceased failed to make adequate provision for their proper maintenance, education, or advancement in life.
Understanding how de facto relationships and Will contests work is important for anyone who has lost a partner and believes they have not received adequate provision from the deceased estate.
In New South Wales, these claims are known as family provision claims and are governed by the Succession Act 2006 (NSW). If a claim is successful, the Court may adjust the distribution of the estate to provide further support for an eligible person.
A de facto partner can make a family provision claim if they meet the eligibility requirements and can show that the deceased did not make adequate provision for their needs. Each claim depends on the circumstances of the relationship, the value of the estate, and the competing interests of other beneficiaries.
Can a De Facto Partner Contest a Will in NSW?
Yes, a de facto partner may contest a Will in NSW. Under the Succession Act 2006 (NSW), a de facto partner is considered an eligible person who may bring a family provision claim against a deceased estate.
Other eligible persons may include a spouse, former spouse, child of the deceased, certain dependants, or people who lived with the deceased in a close personal relationship at the time of death.
Before making a claim, a de facto partner must first establish that a genuine de facto relationship existed. They must then demonstrate that the deceased failed to provide adequate provision for their proper maintenance and support.
What Is a De Facto Relationship?
A de facto relationship exists where two people live together in a genuine domestic relationship. The couple may be of the same or opposite sex and must not be legally married or related by family.
When determining whether a de facto relationship existed, the Court considers the overall circumstances of the relationship, including factors such as:
- The length of the relationship;
- Whether the couple cared for children together;
- The nature and extent of their shared residence;
- The existence of a sexual relationship;
- Financial interdependence;
- Ownership and acquisition of property; and
- How family members, friends, and the wider community viewed the relationship.
Not every factor applies to every relationship. The Court will consider all relevant circumstances before deciding whether a de facto relationship existed.
What Does a De Facto Partner Need to Prove in a Will Contest?
To succeed in a family provision claim, a de facto partner must show that the deceased failed to make adequate provision for their proper maintenance, education, or advancement in life.
This may occur where the deceased completely excluded the de facto partner from their Will or where the inheritance they received does not adequately meet their financial needs.
When assessing a claim, the Court considers factors including:
- The deceased’s moral obligation to provide for the de facto partner;
- The size and nature of the deceased estate;
- The applicant’s financial circumstances and future needs;
- The needs and circumstances of other beneficiaries; and
- The nature of the relationship between the deceased and the applicant.
Many de facto relationship Will contests involve competing claims between the surviving partner and children from a previous relationship. In these circumstances, the Court may consider:
- The length of the de facto relationship;
- The financial and non-financial contributions made by each person;
- The applicant’s age, health, education, employment, and personal circumstances;
- The applicant’s financial position and future needs;
- The financial circumstances of other beneficiaries;
- Assets already transferred to the applicant after death; and
- Any life insurance or superannuation benefits received by the applicant.
Case Study: De Facto Partner Challenges a Will in NSW
The case of Lawrence v Martin [2014] NSWSC 1506 considered a family provision claim brought by a de facto partner who had been excluded from the deceased’s Will.
The deceased and applicant had been in a relationship for 16 years. However, the deceased had not updated his Will after separating from his former spouse. His Will provided for his former spouse and later his two sons from that marriage.
After the divorce, the former spouse could no longer benefit under the Will. As a result, the deceased’s estate, valued at approximately $1.6 million, passed equally to his two sons.
The applicant had already received a $229,000 life insurance benefit and ownership of the jointly held family home, valued at approximately $1.5 million with a mortgage of $78,000.
The Court considered several factors, including:
- The applicant’s previous receipt of life insurance and transfer of the family home;
- The applicant’s financial contributions to the home and other assets;
- The financial interdependence between the applicant and deceased;
- The genuine and long-term nature of the relationship;
- The applicant’s age, health, and future reduction in income;
- The deceased’s intention to provide homes for his sons; and
- The financial circumstances and needs of each son.
After considering the competing interests, the Court awarded the applicant $350,000 from the estate.
Can a De Facto Partner Contest a Will if There Is No Will?
Yes. A de facto partner may still make a family provision claim if the deceased died without a Will.
When a person dies intestate, the estate is distributed according to the rules set out in the Succession Act 2006 (NSW). These rules generally prioritise the deceased’s spouse, de facto partner, and children.
Because the definition of spouse includes a domestic partner, the absence of a Will does not prevent a de facto partner from seeking further provision from an intestate estate.
How Can You Reduce the Risk of a De Facto Partner Will Contest?
Effective estate planning can help reduce the risk of disputes after death. A properly prepared Will allows you to clearly explain your wishes and provide for the people who matter most.
You should regularly review your Will after major life events, including entering a new relationship, separating, having children, or acquiring significant assets.
Obtaining professional estate planning advice can help ensure your Will reflects your circumstances and may reduce the likelihood of future family provision disputes.
Conclusion: De Facto Relationships and Will Contests in NSW
A de facto partner may contest a Will in NSW if they qualify as an eligible person and can show that the deceased failed to make adequate provision for their needs.
Understanding the law surrounding de facto relationships and Will contests can help partners understand their rights and the options available when dealing with a deceased estate.
Every family provision claim depends on the individual circumstances of the relationship, the size of the estate, and the needs of other beneficiaries.
Where possible, parties should attempt to resolve family provision claims outside of Court, as litigation can significantly reduce estate assets through legal costs.
This information is general in nature only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].