All jurisdictions in Australia provide statutory rights for eligible persons to contest a will if they can show that they have been left without adequate provision.
In Western Australia, an eligible person includes:
- a spouse or de facto partner;
- a person receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner;
- a child of the deceased;
- a grandchild of the deceased, in specified circumstances;
- a stepchild of the deceased, in specified circumstances; and
- a parent of the deceased.
If such a claim is successful, the Court can order an adjustment to the will to satisfy the claim.
When contesting a will, a de facto partner must first establish the existence of the de facto relationship with the deceased, then show that he or she has been left without adequate provision. Claims are assessed based on a range of factors and the unique circumstances relevant to each case.
Strict time limits apply for bringing such claims and it is wise to obtain early legal advice.
What is a de facto relationship?
A de facto relationship exists where a couple live together in a marriage-like relationship.
Factors considered in establishing a de facto relationship include the length of the relationship, the care and support of children, the nature and extent of a common residence, the existence of a sexual relationship, financial interdependence, property acquisition and ownership, and the public perception of the relationship.
What must an applicant prove in a family provision claim?
An applicant must prove that he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life. A claim may be made because the applicant was completely left out of the will or that, in light of the applicant’s financial needs, the inheritance proposed is insufficient to support their needs.
Every case is different, but the typical matters that a Court considers in such claims include:
- the length of the de facto relationship;
- the respective financial and non-financial contributions of the applicant and the deceased to the estate assets;
- the personal circumstances of the applicant such as his or her education, employment, age, health and special needs;
- the financial position and financial needs of the applicant;
- the personal circumstances, financial position and financial needs of the deceased’s children or other beneficiaries or applicants;
- whether there were joint assets that already transferred to the applicant after the deceased’s death; and
- whether the applicant received any benefit from the deceased’s life insurance or superannuation payments.
Case study
Lawrence v Martin [2014] NSWSC 1506 considered a claim by a de facto partner who had been left out of the deceased’s will. Although their relationship had lasted for 16 years, the deceased had not updated his will since divorcing his former spouse in 1999. The will left his entire estate to his (then) spouse, and then to his two sons of that marriage. The effect of the divorce was that the wife was precluded from benefiting under the will. Consequently, his estate was to be shared equally by his sons. The estate was worth around $1.6 million.
On the testator’s death, the de facto received a life insurance benefit of $229,000 and the interest in their jointly-owned family home was transferred into her sole name. The home was worth around $1.5 million with a mortgage of $78,000.
The applicant claimed provision of $660,000 from the estate.
The Court considered the following matters:
- that the de facto had already received a substantial life insurance benefit and the transfer of the family home into her name;
- that the de facto had made substantial financial contributions to the family home and assets of the deceased;
- that the de facto and the deceased were financially interdependent;
- that the relationship was genuine and long-lasting with the de facto making substantial contributions towards the deceased’s welfare;
- that the de facto, aged 60, would likely cease work over the ensuing years resulting in a substantial reduction in income;
- although in reasonable health, the de facto suffered some limitations due to neck, back and shoulder issues;
- the intentions of the deceased which declared a desire to leave each of his sons a house; and
- the financial position and needs of each son, one of whom suffered a bipolar condition making it difficult to sustain long-term employment, as well as other health issues.
The court awarded the de facto $350,000.
What happens if there is no will?
When a person dies intestate (without leaving a will), the estate is distributed according to a statutory formula set out in legislation. The distribution follows the deceased person’s next of kin and the priority is generally the spouse and children (if any). A ‘spouse’ includes a married or domestic partner.
A de facto may still make a claim for further provision if the deceased died without leaving a will.
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