This article explains your rights as a de facto partner to contest a Will in NSW, the steps involved, and what the court looks at when deciding these claims. The information is general only and does not constitute legal advice.
Summary of Your Rights
A de facto partner generally has the same rights as a married spouse and is considered an ‘eligible person’ under NSW law to contest a Will. Contesting a Will in this context means making a Family Provision Claim to the Supreme Court of NSW, asking for a share, or a larger share, of your deceased partner’s estate for your proper maintenance and support.
- Eligibility: You must prove you were in a genuine de facto relationship with the deceased at the time of their death.
- The Claim: You must demonstrate that the Will (or the rules of intestacy, if there was no Will) failed to make adequate provision for your proper maintenance, education, or advancement in life.
What is a De Facto Relationship?
Before you can make a claim, you must be able to prove to the court that you were, in fact, in a genuine de facto relationship with the deceased person when they died.
A de facto relationship is generally defined as a relationship between two adult people who live together as a couple on a genuine domestic basis, but who are not married to one another.
The court looks at the totality of the circumstances of your relationship, considering factors like:
- Duration: How long the relationship lasted.
- Residence: The nature and extent of your shared home.
- Intimacy: Whether a sexual relationship existed.
- Finances: The degree of financial dependence or interdependence and how you handled money (e.g., shared bank accounts, financial support).
- Commitment: The level of mutual commitment to a shared life.
- Children: The care and support of children.
- Household: The performance of household duties.
- Public life: How the relationship was publicly known and viewed by friends and family.
Importantly, no single factor is conclusive. The court will assess all the evidence to decide if your relationship meets the legal definition.
The Grounds for Contesting a Will
As an eligible de facto partner, by making a Family Provision Claim, you are essentially asking the court to change the Will because it did not make ‘adequate provision’ for your proper support and maintenance. This applies whether you were left out of the Will completely, or if you were included but the amount or nature of the gift is not enough to meet your needs.
To decide if you should receive a provision from the estate, the court generally follows a two-stage process:
1. Was Provision Adequate?
The court first asks: Did the deceased have a moral duty to provide for you, and did the Will fail to make adequate provision for your proper maintenance, education, and advancement in life?
They consider your financial needs at the time of the hearing, not just at the time of your partner’s death.
2. What Provision Should be Made?
If the court decides the provision was inadequate, then it determines what provision should be made from the estate. This is a complex balancing act, where the judge considers a wide range of factors, including:
- Your financial situation: Your current and future financial needs and resources (including earning capacity, property, and superannuation).
- The estate’s value: The size and nature of the deceased’s estate.
- Your contributions: Any contributions you made to the deceased’s estate or their welfare (financial or non-financial).
- Relationship factors: The nature and duration of your relationship with the deceased.
- Competing claims: The financial needs and circumstances of any other beneficiaries or ‘eligible persons’ (such as the deceased’s children from a previous relationship).
- Age and health: Your age, health, and any physical or mental disabilities.
The court’s aim is to make an order that is just and equitable in the circumstances.
Time Limits and Actionable Steps
There is a strict time limit for making a Family Provision Claim in NSW.
You must file your application with the Supreme Court within 12 months from the date of the deceased person’s death.
While the court can sometimes grant an extension, it is rare and requires showing sufficient cause for the delay. It is crucial to act quickly if you believe you have a claim.
Practical Steps to Take
- Seek legal advice immediately: Contact a lawyer specialising in wills and estate disputes as soon as possible to discuss your eligibility and the potential strength of your claim.
- Gather evidence of the relationship: Start collecting documents and other evidence that proves the genuine nature of your de facto relationship. This could include joint bank statements, utility bills in both names, photographs, correspondence, and evidence of shared property ownership or mutual financial support.
- Gather financial information: Compile a comprehensive picture of your current financial position, including your assets, liabilities, income, and any future financial needs.
Key Takeaways
- De facto rights: De facto partners in NSW are amongst those persons eligible to contest a Will by making a Family Provision Claim.
- Proving the relationship: The first hurdle is proving to the court that you were in a genuine de facto relationship at the time of death.
- Inadequate provision: The basis of the claim is that the Will did not make adequate provision for your proper maintenance and support.
- Time is critical: You have a 12-month deadline from the date of death to file your claim with the Supreme Court.
This is general information only, and we recommend obtaining professional advice relevant to your circumstances. For more information or legal advice specific to your needs, please call 02 9150 6991 or email [email protected].