Lesley McDonnellA recent NSW decision has ignited the debate amongst those who oppose fettering a testator’s right to testamentary freedom against the proponents of current legislation which seeks to protect the family of the deceased by providing for members of the family who would otherwise be left without adequate provision. A recent case saw an applicant bring a successful family provision claim against her former lover’s estate.

The deceased died in 2011 aged 65 years. The deceased left a Will made in 2006. The Will provided for the estate to be divided equally between the deceased’s wife, son and daughter. The estate was worth over $6 million. No provision was made in the Will for the applicant who was the former de facto spouse of the deceased.

In order to make a family provision claim a person must be an “eligible person” as defined by legislation. In NSW the categories of eligible persons generally consist of a spouse of the testator (including de facto spouse) at the time of the testator’s death, a child, a former spouse, a dependent grandchild or a dependent member of the testator’s household or a person with whom the testator was living in a close personal relationship at the time of the testator’s death.

In this case the applicant was an eligible person because she was a person who was, for a time, wholly or partly dependent on the deceased and a member of his household.

The de facto relationship between the applicant and the deceased lasted about 8 years and ended 30 years before the death of the deceased. There was a child of the relationship. After the relationship ended, both re-partnered but there was no property settlement.

The wealth accumulated by the deceased came long after the relationship between the applicant and the deceased had ended. When the applicant returned to Australia in 2006 after working abroad, she turned to the deceased and he provided her with assistance.

The Judge stated “At first blush, one naturally hesitates to find factors warranting a family provision application in a case involving a de facto relationship 30 years distant from the deceased’s date of death, coupled with a divergence in the lives of the former de facto partners as they re-partnered and pursued different economic paths”. Against this the Judge noted “as life unfolded, there was (in social terms) a reconciliation” between the applicant and the deceased; “their estrangement was not, in that context, absolute or complete; the deceased remained solicitous of the welfare” of the applicant “in part, but not only in part, because he recognised her as the mother of his son; he encouraged her to return to Australia in 2006; and, when she did so, he provided her with assistance”.

In making an evaluative judgment, the Court made provision out the deceased’s estate to the applicant in the sum of $350,000.

At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.