Introduction

When a carer is left out of a will in New South Wales (NSW), they may still have the right to challenge the will. The Succession Act 2006 (NSW) allows certain “eligible persons” to make a family provision claim against a deceased estate if they believe they have been left with inadequate provision.

For a carer, establishing eligibility to make a claim often depends on proving the nature of their relationship with the deceased, such as being a de facto partner or in a “close personal relationship.” This guide explains the legal pathways for a carer to make a family provision claim and the key factors the court will consider.

Establishing Your Eligibility to Make a Family Provision Claim

The Role of the Succession Act 2006

In NSW, the right to make a family provision claim is governed by the Succession Act 2006 (NSW). This legislation clearly defines who qualifies as an “eligible person” and can therefore apply to the Court for a share, or a larger share, of a deceased estate.

Under section 57 of the Succession Act 2006 (NSW), eligibility extends to the following categories of people:

Eligible Person Category	Definition
A spouse	The person who was married to the deceased at the time of their death.
A de facto partner	An individual who was in a de facto relationship with the deceased when they died.
A child	This includes biological and adopted children of the deceased.
A former spouse	A person who was previously married to the deceased.
A dependent person	An individual who was wholly or partly dependent on the deceased at any time and was also a member of the deceased’s household. This can include grandchildren.
A person in a close personal relationship	Someone who was living with the deceased in a close personal relationship at the time of death.

Claiming as a Person in a Close Personal Relationship

A carer may be eligible to make a family provision claim if they were in a “close personal relationship” with the deceased. This is specifically defined as a relationship between two adults who live together and provide each other with domestic support and personal care.

It is important to note that this category cannot be a marriage or a de facto relationship. Additionally, there are significant exclusions that apply:

Exclusion Condition	Explanation
Care Provided for Payment	A close personal relationship does not exist if the care and domestic support were provided for a fee or reward.
Care Provided on Behalf of an Organisation	A close personal relationship does not apply if the care was provided on behalf of another person or an organisation.

Claiming as a De Facto Partner

Establishing that you were the de facto partner of the deceased at the time of their death creates a strong foundation for a family provision claim. Unlike some other categories, a de facto partner does not need to prove there were special factors warranting the claim.

The court will consider various factors to determine if a de facto relationship existed. These factors, outlined in the Interpretation Act (NSW), include:

•   The duration of the relationship.
•   The nature and extent of any shared residence.
•   Whether a sexual relationship existed.
•   The degree of financial dependence or interdependence between the parties.
•   The ownership, use, and acquisition of property.
•   The level of mutual commitment to a shared life.
•   The reputation and public aspects of the relationship.

Proving You Were Dependent on the Deceased

Another pathway for a carer to make a claim is by proving they were wholly or partly dependent on the deceased person. To qualify under this category, the person must also have been a member of the same household as the deceased at some point.

This category is quite broad and can encompass various relationships, including:

•   Grandchildren who were dependent on the deceased
•   Stepchildren or former de facto partners who can demonstrate both financial dependency and membership in the deceased’s household

Key Factors the Court Considers

Your Relationship with the Deceased & Your Financial Needs

When assessing a family provision claim, the court closely examines the nature of the relationship between the applicant and the deceased. It will consider the quality of the connection and any obligations or responsibilities the deceased person owed to the carer. This helps establish the moral claim the applicant has on the deceased estate.

The court also conducts a thorough evaluation of the applicant’s financial circumstances, as financial need in family provision claims is a primary consideration. This involves looking at their current and future financial needs to determine if adequate provision has been made for them.

Factors taken into account include:

•   The applicant’s age and earning capability
•   Whether they are financially supported by another person
•   The presence of any physical, intellectual, or mental disabilities that may impact their ability to provide for themselves

The Deceased’s Estate & Obligations

The size and nature of the deceased’s estate are critical factors in the court’s decision-making process. The court will consider the value and location of all property and assets to understand what is available for distribution. This evaluation ensures that any order made is practical and sustainable within the estate’s means.

Furthermore, the court must balance the applicant’s claim against the needs of other potential beneficiaries. It considers any competing claims on the estate from other eligible persons, such as children or a spouse. The effect of any proposed order on the named beneficiaries in the Will is carefully weighed to ensure a just and equitable outcome.

Your Contributions & Character

The court will assess any contributions the carer made to the deceased’s estate or welfare. This includes:

•   Contributions that helped acquire, conserve, or improve the deceased’s property
•   Non-financial contributions, such as care provided to the deceased or their family, which enhanced their quality of life

An applicant’s character and conduct are also relevant considerations for the court. This review covers their behaviour both during the deceased’s lifetime and after their death. Additionally, the court will examine any provisions the deceased made for the applicant during their lifetime to determine if they have already been supported.

Case Study: Sun v Chapman

The Initial Claim Dismissal

The case of Sun v Chapman provides a significant real-world example of a carer’s family provision claim. Ms. Rose Sun lived with the deceased, Mr. Richard Chapman, for 21 years until his death in 2019. Following his passing, Ms. Sun made a family provision claim against his deceased estate, arguing she was his de facto partner.

Mr. Chapman’s will, written two years before their relationship began, left his entire estate to his children. The executor of the estate defended the claim on the grounds that:

•   Ms. Sun was merely a carer who had responded to a newspaper advertisement for domestic services
•   She was not entitled to a share of the estate as a de facto partner

The Supreme Court initially dismissed Ms. Sun’s claim. The judge found her evidence to be inconsistent and deemed her an unreliable witness, concluding that any de facto relationship had ended before Mr. Chapman’s death.

The Successful Appeal & Key Findings

Ms. Sun appealed the decision to the NSW Court of Appeal, which ultimately overturned the initial ruling. The Court of Appeal found that a de facto relationship had, in fact, continued up until Mr. Chapman’s death.

The court made several key findings that are important for understanding the nature of de facto relationships in NSW:

•   A de facto relationship does not cease simply because it becomes difficult
•   The relationship does not end merely because the parties stop loving each other
•   A de facto relationship can continue even when intimacy ends
•   The relationship between a patient and a carer is not necessarily inconsistent with an ongoing de facto relationship

Based on this reasoning, the Court of Appeal awarded Ms. Sun $550,000 from the estate to discharge her mortgage, recognising her moral claim and contributions to the deceased’s welfare.

The Process to Make a Claim & The Role of Mediation

Strict Time Limits for Making a Family Provision Claim

If you are an eligible person, such as a carer, and intend to make a family provision claim, you must adhere to strict family provision claim time limits. In NSW, your application must be filed with the court within 12 months from the date of the deceased person’s death.

This time limit is mandatory and can only be extended by the court in exceptional circumstances. To grant an extension, the court must be satisfied that a sufficient reason has been shown for the delay.

It is crucial to seek legal advice promptly to ensure you do not miss this critical window, as failing to meet the deadline could result in losing your right to make a claim entirely.

The Importance of Mediation Before Court

Before a family provision claim proceeds to a final court hearing, the court will require the parties to attend mediation in NSW will disputes. This process is designed to help resolve the dispute without the need for a formal trial, which can benefit all parties involved in several ways:

•   Saving significant time by avoiding lengthy court proceedings
•   Reducing financial costs associated with a full trial
•   Minimising emotional stress for all participants
•   Providing a more collaborative environment for resolution

Mediation provides a voluntary and effective forum for reaching a settlement. In fact, many family provision matters are successfully resolved at this stage, eliminating the need for further court proceedings.

You will not be given a hearing date in court unless you have first attempted to settle the matter through mediation, making this step an essential part of the claims process.

Understanding the Potential Legal Costs

It is a common misconception that legal costs for a family provision claim are automatically paid from the deceased estate. The reality is more complex:

•   The court has the discretion to decide how costs are handled
•   There is no guarantee that the estate will cover your legal expenses
•   If your application is unsuccessful, you face significant financial risk
•   You may be ordered to pay not only your own legal costs but also those incurred by the estate in defending the claim

This financial consideration should be carefully weighed when deciding whether to proceed with a family provision claim, as the potential costs could be substantial.

Conclusion

In NSW, a carer may be eligible to make a family provision claim against a deceased estate if they have been left with inadequate provision. Eligibility often depends on establishing a de facto partnership, a close personal relationship, or dependency, with the court considering various factors to determine a fair outcome.

If you are a carer who has been left out of a will, it is essential to seek timely legal advice to understand your rights and options. Contact the experienced wills and estates lawyers at PBL Law Group for specialised guidance on navigating the complexities of a family provision claim in NSW.

Frequently Asked Questions