Can a de facto spouse contest a Will?

Only individuals who had a sufficiently close relationship with the deceased are entitled to bring a claim contesting a Will.   The class of people are known as ‘eligible persons’.  A de facto person, as defined, is an eligible person and therefore entitled to make a claim.

Who is an Eligible Person?

In NSW, the definition of an eligible person is outlined in the Succession Act 2006 (NSW). Under section 57(1)(b), a de facto spouse as of the date of death of the deceased person is an eligible person.

It is important to understand that being an eligible person does guarantee the success of a claim, but merely permits a claim to be commenced.

What is a De Facto Relationship?

While married couples can use a marriage certificate as proof of their relationship, establishing a de facto relationship is generally more complicated. The definition of a de facto relationship is set out in the Property (Relationships) Act 1984 (NSW). Section 4 defines a de facto relationship as a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.  Note the live together does not mean the same as permanent co habitation.

In determining whether the two persons are in a de facto relationship, the Act mandates the court has regard to the following factors:

  1. the duration of the relationship,
  2. the nature and extent of common residence,
  3. whether or not a sexual relationship exists,
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
  5. the ownership, use and acquisition of property,
  6. the degree of mutual commitment to a shared life,
  7. the care and support of children,
  8. the performance of household duties,
  9. the reputation and public aspects of the relationship.

It is important to note, however, that not all factors are relevant in every relationship and the court can exercise discretion as to the weight accorded to each factor.

Process of Contesting a Will

A family provision claim is commenced by filing a summons and supporting affidavit in the Supreme Court. The time limits that apply to making a Family Provision Claim vary across Australia. In NSW, you have 12 months from the testator’s date of death to contest a will.

The claim will be determined on the facts and the de facto spouse must establish that he or she has been left without adequate provision for his or her proper maintenance, education, and advancement in life.

If the court accepts this, the final stage is the determination of what amount, if any, should be paid to the de facto spouse from the estate of the deceased person. In making this determination, the court will consider a number of factors including: the deceased’s moral obligation to provide for the applicant, the value of the estate and the competing financial needs of other eligible persons.

It is important to note that almost all matters are subject to compulsory mediation to see if they can be settled. Most cases are resolved at mediation. If your case is not resolved, it will come back before the court and a hearing date will be appointed. For further information on the process of contesting a Will, feel free to look at this article here.

Segelov Taylor Lawyers Can Help

Will disputes are undeniably sensitive and deeply personal matters. Eligible individuals have the right to contest the Will.  Whether you feel unfairly excluded as a beneficiary or believe your share is insufficient, Segelov Taylor Lawyers can help you understand your options and receive the rightful share you deserve.

If you think you may be entitled to contest a will, please contact David Taylor directly at david@segelovtaylor.com.au or (02) 8880 0500 to organise a free initial case assessment.

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