Contesting a Will as De Facto

A de facto spouse is an Eligible Person pursuant to section 57 of the Succession Act 2006.

For the purpose of eligibility the de facto must establish that they were the de facto spouse as at the date of death, and not simply some previous time.

Establishing the de facto relationship may or may not be a complicated task. The definition of de facto relationship is set out in the Property (Relationships) Act 1984 and defines as de facto relationship between two adult persons who (a) live together as a couple and (b) are not married to one another, or related by family. In determining whether the two persons are in a de facto relationship the Court will have regard to the following matters:

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

If the Court is satisfied the applicant was the de facto spouse as at the date of death, the de facto spouse will be eligible to bring the claim seeking provision, or further provision, from the estate of the deceased person.

To successfully contest the will the de facto spouse must establish that the provision made for the de facto spouse in the will (or if there was no will in accordance with the rules of intestacy) was inadequate. If the Court accepts such then 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 addition to the amount the de facto spouse might be entitled to under the terms of the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the de facto spouse.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the de facto spouse the deceased before or after death.
• whether the de facto spouse was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the de facto spouse.

While ultimately each case turns on its own particular circumstances a de facto spouse can have a strong moral claim to the deceased person’s estate if the claim is prepared thoroughly and by lawyers experienced in the area.

If you are an executor of a deceased estate, or a de facto spouse who has been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong