What does “De Facto” mean in NSW?

For the purposes of a family provision claim under the Succession Act 2006 (NSW), the definition of “de facto relationship” is taken from section 21C of the Interpretation Act 1987 (NSW) which defines a person as being in a de facto relationship with another person if they have a “relationship as a couple” living together as a couple, and they are not legally married to one another or related by family.

Circumstances which may be taken into account when determining whether a relationship between two adult persons living together on a genuine domestic basis constitutes a “relationship as a couple” include the following:

• length of the relationship,
• the nature and extent of their common residence — determining whether the two persons share the same home,
• whether a sexual relationship exists,
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
• 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.

Are De Facto Partners Entitled to Contest a Will in NSW?

De facto partners are eligible persons to contest a will. However, eligibility is only the first question. They must also prove that they did not receive adequate provision for their proper maintenance, education and advancement in life from the deceased’s will.

De facto relationships are not always easy to establish, and may require documentary evidence to be gathered to substantiate the relationship.

Empower Wills and Estate Lawyers can provide expert legal advice and representation for de facto partners in NSW looking to contest a will. Our expertise ensures that all aspects of the claim are properly addressed, from establishing eligibility to presenting a compelling case in court.

Grounds for a De Facto Partner to Contest or Challenge a Will

Lack of adequate provision

A de facto partner may contest a will if they believe they did not receive adequate provision for their proper maintenance, education or advancement in life under the deceased’s will, or because of the operation of the laws of intestacy.

Testamentary capacity

A de facto partner may also have grounds to challenge a will if the testator (the person who made the will) lacked the testamentary capacity at the time the will was made. This may involve proving that the testator did not understand the nature and effect of the will, did not fully understand the extent of the property being disposed of, did not understand the potential claims by potential beneficiaries, or that they were suffering from a mental disorder or insane delusion at the time they prepared the Will.

Undue influence or coercion

A will may also be challenged if there is evidence that it was made under undue influence or coercion that is, that the testator’s free will was overborne. This could include a situation where the testator was pressured by someone other than the de facto partner, leading to an unfair distribution that neglected the needs or rights of the de facto spouse.

Fraud or forgery

A will can also be challenged if there is evidence that it is a product of fraud or forgery. A will may be the product of fraud where the testator did not know what they were signing, where a will has been produced without the testator’s knowledge or where a will has been fraudulently altered after the testator’s death.

Revocation or invalidity

De facto partners may also challenge a will that had been revoked or was otherwise invalid. This might occur where a later valid will surfaces which reflects the testator’s latest intentions, including potential changes in the relationship with the de facto partner.

Failure to recognise the de facto relationship

Legal disputes may also arise if a will fails to recognise the existence of the de facto relationship, especially if the de facto relationship with the deceased was not known or accepted by other family members or was not properly documented. Lawyers can provide crucial assistance in establishing the existence of the relationship to protect a de facto’s entitlement to an estate and bring the claim where necessary.

Breach of promise or agreement

A de facto partner may contest a will if the deceased made a promise or agreement to provide for them, which was not reflected in the will. This might involve specific assurances for ongoing support or entitlements that were verbally agreed upon but not formalised in the legal documents.

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

Proving the de facto relationship

The first step in contesting a will as a de facto partner is proving the the persons are in a de facto relationship. The de facto spouse must demonstrate that the de facto partnership meets the definition, which may include providing evidence of the duration of the relationship, the nature and extent of the cohabitation, the degree of any financial support, the performance of household duties and the extent of the public acknowledgment of the relationship.

Filing a Family Provision Claim

If the de facto partner wants to bring a claim against the estate they will need to file a family provision claim, and satisfy a court that they have been left with inadequate provision from the deceased’s estate. The claim should detail why the partner believes they are entitled to a greater share of the estate, supported by evidence establishing the factors set out in section 60(2) of the Succession Act 2006 (NSW) that a court may consider when determining a claim.

Mediation and settlement efforts

Before proceeding to court, there may be efforts to mediate the dispute. This stage may involve discussions between the party contesting the estate, the executor or administrator who is defending the estate, and the beneficiaries who may be impacted by any determination. An independent mediator may also attend to facilitate the discussion.

Going to court

If mediation does not result in a resolution, the case may proceed to the Supreme Court of New South Wales in which case the de facto partner must prove their case before a judge, demonstrating that the relationship constituted a de facto relationship and satisfying a court that the deceased’s Will did not provide adequate provision. When considering whether to make a family provision order, the court will consider a range of factors presently set out in section 60(2) of the Succession Act 2006 (NSW).

After the court’s decision

If the de facto is successful and a court makes a family provision order in their favour, the court order will operate as a codicil to the deceased’s will, effectively changing the terms of the will. If successful, the de facto may also be able to recover some of their costs from the estate.

If the de facto is unsuccessful, they may be ordered to pay the estate’s costs in defending the claim.

Time Limits for De Facto Partners to Contest a Will

In NSW, a family provision claim must be filed with the court within 12 months from the date of the deceased person’s death. Therefore, it is crucial for de facto partners to act promptly. However, the court has power to extend this deadline where the court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

Potential Outcomes of Contesting a Will

Contesting a will as a de facto partner can result in several potential outcomes, depending on the facts and circumstances of the case and the evidence presented:

1. Dismissal of Claim: If the court is not satisfied that the applicant meets the definition of de facto, or is not satisfied that the deceased’s will did not make adequate provision for the de facto’s maintenance, education or advancement in life, the court may dismiss the claim. The court may also order the applicant to pay the costs of the estate.
2. Settlement: Often, disputes are settled out of court through mediation, resulting in a negotiated agreement that is acceptable to all parties involved.
3. Adjustment of Provision: The court may decide to make or increase the financial provision made for the de facto partner from the estate, ensuring adequate provision has been made.
4. Reallocation of Assets: The court might order the redistribution of certain assets from the estate to the de facto partner, which could involve liquid assets or specific items of sentimental or monetary value.

Explore Your Rights as a De Facto Partner: Contact Empower Wills & Estate Lawyers in Sydney for Trusted Support

If you are a de facto partner with concerns about your entitlements under your partner’s will, or if you need assistance contesting a will in New South Wales, contact Empower Wills and Estate Lawyers in Sydney. Our team specialises in handling complex estate disputes and family provision claims for de facto partners. Discuss your situation with one of our experienced solicitors by calling us on 1300 414 844.

At Empower Wills and Estate Lawyers, we understand the unique challenges faced by de facto partners in estate matters and family law matters. We offer flexible fee structures tailored to your specific circumstances, including “no win, no fee” agreements in some cases. Our team is committed to providing the robust legal support and advocacy needed to secure your rightful share of the estate and protect your interests.

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Disclaimer: the information in this article is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.

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