Introduction

In Australia, de facto partners often face complex legal questions regarding their inheritance rights when a partner passes away. While many laws have evolved to recognise the status of a de facto relationship, navigating succession law can be challenging, particularly when a will fails to provide adequate support for the surviving partner.

For any de facto partner who believes they have been unfairly provided for, understanding the right to contest a will is a critical first step. This guide provides essential information on de facto inheritance law, explaining the process for eligible persons to challenge a will and outlining the key factors considered in such claims.

Understanding Your Eligibility as a De Facto Partner to Contest a Will

What is a De Facto Relationship in NSW Law

In New South Wales (NSW), the law defines a de facto relationship as one between two adult persons who live together as a couple but are not married to one another or related by family. This definition is crucial for de facto inheritance law in Australia and is outlined in legislation such as the Succession Act 2006 (NSW), which references the Interpretation Act 1987 (NSW).

To be considered a de facto couple, the relationship must be established on a genuine domestic basis. The law in Australia does not rely on a single factor but rather assesses the overall nature of the partnership to determine its legal standing. As a result, each de facto relationship is evaluated on its unique circumstances, especially when a partner seeks to contest a will.

Key Factors Courts Consider to Establish a De Facto Relationship

When determining whether two people were in a de facto relationship, courts in NSW will examine all the circumstances of their partnership. No single factor is decisive; instead, the court looks for evidence of a shared life on a genuine domestic basis. The key factors that are taken into account include:

Factor	Description / What the Court Considers
Duration of the relationship	How long the couple was together, as a longer relationship can indicate a higher degree of mutual commitment.
Common residence	Whether the couple lived together in the same home and the nature of their shared living arrangements.
Sexual relationship	The presence of a sexual relationship is a relevant factor, though not a mandatory requirement.
Financial dependence/interdependence	Whether partners shared finances, had joint bank accounts, or provided financial support to one another.
Ownership, use, and acquisition of property	Any property the couple owned together or individually and how it was used during the relationship.
Mutual commitment to a shared life	Whether the couple demonstrated a commitment to a long-term future together.
Care and support of children	How the couple shared responsibilities for the care and upbringing of any children they had.
Performance of household duties	How the couple divided and shared household responsibilities as an indicator of a domestic partnership.
Reputation and public aspects	Whether the couple was publicly recognised by family and friends as being in a relationship.

By examining these factors, the court ensures that each de facto relationship is evaluated on its unique circumstances when a partner seeks to contest a will.

Grounds for a De Facto Partner to Contest a Will

Inadequate Provision for Your Proper Maintenance & Support

The most common reason for a de facto partner to contest a will in Australia is the belief that they have been left with inadequate provision for their proper maintenance, education, and advancement in life. This forms the basis of a family provision claim, which can be made whether you were left out of the will entirely or if the inheritance you received is insufficient to support your needs.

When assessing such a claim, the court evaluates whether the deceased fulfilled their moral obligation to provide for their de facto partner. In doing so, the court considers several factors, including:

• The applicant’s financial needs at the time of the application
• The total value of the estate
• The competing financial needs of any other eligible persons or beneficiaries

Other Grounds for Challenging a Will’s Validity

Beyond inadequate provision, a de facto partner may have other grounds by challenging a will’s validity. These situations often involve the circumstances under which the will was created. Key grounds for such a challenge include:

Ground for Challenge	Explanation
Lack of Testamentary Capacity	The will-maker (testator) lacked the mental capacity to understand the nature of a will, the extent of their property, or the potential claims of beneficiaries.
Undue Influence or Coercion	The testator was pressured or coerced by another person, and proving undue influence is key to showing their free will was overborne, leading to an unfair distribution.
Fraud or Forgery	The will is a product of fraud (e.g., the testator signed a document they didn’t know was a will) or forgery (e.g., the will was created or altered without their knowledge).
Breach of Promise	The deceased made a promise to provide for the de facto partner (e.g., verbal assurances), but this promise was not reflected in the final will.

The Legal Process for Contesting a Will as a De Facto Partner

Proving Your De Facto Relationship & Filing a Claim

The initial step to contest a will as a de facto partner involves formally proving the nature of your relationship. You must provide evidence demonstrating that your partnership meets the legal definition of a de facto relationship under the law in Australia.

This often requires gathering documentation and other proof to substantiate your claim. Evidence may include:

• The duration of your relationship
• The nature and extent of your shared residence or cohabitation
• Details of any financial support or interdependence
• The performance of shared household duties
• The degree of public acknowledgment of your relationship as a couple

Once you have gathered sufficient evidence, the next step is to file a family provision claim with the court. This legal action formally commences your challenge to the will. The claim must assert that you have been left with inadequate provision from the deceased’s estate for your proper maintenance and advancement in life, supported by evidence addressing the factors a court may consider under section 60(2) of the Succession Act 2006 (NSW).

Mediation Settlement Efforts & Going to Court

Before a matter proceeds to a court hearing, parties are typically required to attempt to resolve the dispute through mediation in NSW will disputes. This process involves discussions between you, the executor of the estate, and any beneficiaries who might be affected by your claim. An independent mediator often facilitates these negotiations to help all parties reach a mutually acceptable agreement.

If mediation is unsuccessful and a settlement cannot be reached, the case will proceed to the Supreme Court of NSW, and it is important to understand the Supreme Court’s role in will disputes. In court, you must prove your case before a judge. This involves formally establishing that you were in a de facto relationship with the deceased and satisfying the court that the provision made for you in the will was inadequate.

The court will then consider a range of factors to determine whether to make a family provision order in your favour.

Factors the Court Considers in a De Facto Inheritance Claim

Assessing Your Financial Needs & Resources

When a de facto partner decides to contest a will, the court conducts a detailed assessment of their financial circumstances. This evaluation is crucial to determine whether the provision made in the will was inadequate for their proper maintenance and support.

The court examines both the current financial position and the future needs of the de facto partner making the claim. Several personal circumstances are taken into account to build a complete picture of the applicant’s financial situation, including:

Factor Considered	Relevance to Financial Need
Applicant’s age	How many working years they may have left.
Health and special needs	Potential impact on earning capacity or creation of additional expenses.
Education and employment status	Affects their ability to provide for themselves.
Physical, intellectual, or mental disabilities	Any disabilities that may be relevant to their financial needs.

Your Contributions to the Estate & the Deceased’s Welfare

The court also carefully considers the contributions made by the de facto partner to the deceased’s property and overall welfare. De facto inheritance law in Australia recognises that contributions extend beyond financial aspects to include non-financial support that enriched the deceased’s life.

Both types of contributions are weighed by the court:

Contribution Type	Examples
Financial	Direct payments towards acquiring, maintaining, or improving property Contributions to joint finances and household expenses
Non-financial	Homemaking Caring for children Providing emotional and physical support to the deceased, particularly during illness

The Nature of the Estate & Competing Claims

A court’s decision is not made in isolation; it must balance the de facto partner’s claim with other relevant factors. The total size and nature of the deceased’s estate are fundamental considerations, as a larger estate may allow for more generous provisions.

Furthermore, the court must weigh the applicant’s needs against the competing financial needs of other eligible persons and beneficiaries. This often involves balancing:

•   The moral obligation owed to a de facto partner
•   The needs of the deceased’s children, especially those from a previous relationship

The court also considers any benefits the de facto partner may have already received outside of the will, such as life insurance or superannuation payments.

Case Study: Lawrence v Martin

The case of Lawrence v Martin [2014] NSWSC 1506 provides a real-world example of how de facto inheritance law in Australia is applied when a partner decides to contest a will. This case involved a de facto partner who was left out of her deceased partner’s will, which had not been updated since his divorce in 1999.

Background of the Case

The relationship had lasted for 16 years, yet the will left the entire estate, valued at approximately $1.6 million, to the deceased’s two sons from his previous marriage. Following his death:

•   The de facto partner received a life insurance benefit of $229,000
•   She became the sole owner of their jointly-held home, worth around $1.5 million
•   She subsequently made a claim for a provision of $660,000 from the estate

Key Factors in the Court’s Decision

In reaching its decision, the court had to balance the de facto partner’s claim against the competing needs of the deceased’s sons. Several critical factors influenced the court’s assessment:

Factor Considered by the Court	Details from the Case
Benefits already received	The applicant had already received a substantial life insurance payout and the jointly-held family home.
Applicant’s contributions	Her significant financial contributions to the home and assets were considered, along with non-financial contributions to the deceased’s welfare.
Financial interdependence	Evidence demonstrated that the de facto couple maintained financial interdependence throughout their partnership.
Applicant’s future needs	At 60 years old, her future earning capacity was limited, and she had some health issues affecting her prospects.
Competing claims	The court considered the deceased’s desire to leave a house to each of his sons and their own financial needs.

After carefully weighing these competing interests, the court awarded the de facto partner $350,000 from the estate. This case illustrates how the court thoroughly examines all circumstances to reach a fair and balanced outcome when resolving inheritance disputes involving de facto relationships.

Time Limits for De Facto Partners to Contest a Will in NSW

In NSW, de facto partners must be aware of strict timeframes when contesting a will. The following key points apply:

•   A family provision claim must be filed with the court within 12 months from the date of the deceased person’s death, as these family provision claim time limits are strictly enforced.
•   It is crucial for any de facto partner considering a claim on an inheritance to act promptly to meet this deadline.

The court does have the power to extend this time limit in certain situations. An extension may be granted if:

•   Sufficient cause is shown for the delay, or
•   All parties involved in the proceedings consent to the application being made out of time.

Conclusion

The de facto inheritance law in Australia requires a clear understanding of your eligibility, the grounds for a claim, and the strict legal processes involved. As an eligible person, a de facto partner has the right to contest a will if they have been left with inadequate provision, but success depends on proving the relationship and meeting specific legal criteria within set time limits.

If you believe you have been unfairly provided for in your partner’s will, it is crucial to seek legal advice to understand your rights and options. Contact the expert wills and estate lawyers at PBL Law Group in Sydney for specialised guidance on contesting a will and securing your rightful inheritance.

Frequently Asked Questions