A de facto partner may be able to contest a Will if they believe they have not received adequate provision from their deceased partner’s estate.
In New South Wales, certain eligible people can make a family provision claim if they can show that the deceased person failed to make adequate provision for their proper maintenance, education or advancement in life.
A de facto partner is one category of person who may be eligible to make a claim. However, eligibility alone does not guarantee success. The Court will consider the circumstances of the relationship, the needs of the applicant, the size of the estate and the competing interests of other beneficiaries.
This article explains when a de facto partner can contest a Will, what must be proven in a family provision claim and the factors the Court considers when deciding whether further provision should be made.
Can a De Facto Partner Contest a Will in NSW?
Yes. A de facto partner may be eligible to contest a Will in NSW by making a family provision claim under the Succession Act 2006 (NSW).
To make a successful claim, the de facto partner must generally establish two key things:
| Requirement | What Must Be Established |
|---|---|
| Eligibility | The person must fall within a category of eligible person under NSW succession law, such as being the de facto partner of the deceased. |
| Inadequate provision | The person must show that the Will or intestacy distribution did not make adequate provision for their proper maintenance, education or advancement in life. |
If the Court accepts the claim, it may make an order adjusting the distribution of the estate to provide further provision for the applicant.
Who Is Considered a De Facto Partner?
A de facto relationship exists where two people, whether of the same or opposite sex, live together in a genuine domestic relationship and are not legally married or related by family.
Establishing a de facto relationship is not always straightforward. The Court looks at the overall circumstances of the relationship rather than relying on one single factor.
Factors that may be considered include:
- the length of the relationship;
- whether the couple lived together and the nature of their shared home;
- whether they provided financial support for each other;
- the ownership and use of property;
- whether they cared for children together;
- the level of emotional and personal commitment;
- how the relationship was viewed publicly.
Not every factor will apply in every relationship. The Court considers the evidence as a whole when determining whether a genuine domestic relationship existed.
What Does a De Facto Partner Need to Prove in a Family Provision Claim?
A de facto partner who makes a family provision claim must show that, at the time the application is being considered, they have not received adequate provision from the deceased’s estate.
This may occur where:
- the de facto partner has been completely excluded from the Will;
- the inheritance received is insufficient to meet their financial needs;
- the deceased’s estate plan does not properly recognise the relationship or contributions made by the de facto partner.
The Court does not simply rewrite a Will because someone has received less than another beneficiary. Instead, it considers whether the deceased had a moral obligation to provide for the applicant and whether that obligation was properly met.
Factors Considered by the Court in a De Facto Partner Claim
Every family provision claim is determined based on its own facts. When assessing a claim by a de facto partner, the Court may consider:
| Factor | Why It Matters |
|---|---|
| Length of the relationship | A longer relationship may indicate a stronger obligation for the deceased to provide for their partner. |
| Financial and non-financial contributions | The Court may consider contributions made by both the deceased and the applicant to assets, the household and the relationship. |
| Applicant’s circumstances | The Court may consider the applicant’s age, health, employment, income, education and financial needs. |
| Needs of other beneficiaries | The Court will consider the circumstances of children, former partners and other people who may benefit from the estate. |
| Assets received outside the estate | The Court may consider property, superannuation, insurance benefits or jointly owned assets already received by the applicant. |
De Facto Partner Claims and Competing Beneficiaries
Family provision claims involving de facto partners often involve competing interests between the surviving partner and other beneficiaries, particularly children from a previous relationship.
For example, a deceased person may have wanted their surviving partner to remain financially secure while also intending to provide an inheritance for their children. These competing interests can make estate planning challenging, particularly where the deceased’s Will has not been updated to reflect their current circumstances.
Traditionally, many couples prepare Wills that leave everything to the surviving spouse or partner, with the intention that the remaining assets will eventually pass to their children after both partners have died. However, this approach may not always achieve the intended outcome in blended families or de facto relationships.
Potential issues include:
- the surviving partner receiving the majority of the estate, leaving less available for children or other beneficiaries;
- children from a previous relationship having to wait many years before receiving an inheritance;
- the surviving partner changing their own Will in the future, affecting who ultimately benefits;
- family provision claims being made if someone believes they have not been adequately provided for.
Careful estate planning, including considering structures such as testamentary trusts, can help balance the needs of different beneficiaries and reduce the likelihood of disputes.
Case Study: De Facto Partner Successfully Makes a Family Provision Claim
The case of Lawrence v Martin [2014] NSWSC 1506 demonstrates how the Court considers the competing interests of a de facto partner and children when deciding a family provision claim.
The matter involved a de facto partner who had been left out of the deceased’s Will. The deceased had not updated his Will after divorcing his former spouse, meaning his estate was ultimately left to his two sons.
The deceased’s estate was valued at approximately $1.6 million. However, after his death, the applicant had already received significant benefits, including:
| Benefit Received | Value |
|---|---|
| Life insurance benefit | $229,000 |
| Family home transferred into applicant’s name | Approximately $1.5 million (subject to mortgage) |
The de facto partner made a claim seeking further provision from the estate. In considering the application, the Court examined a range of factors, including:
- the length and nature of the relationship;
- the applicant’s financial contributions to the relationship and family assets;
- the financial interdependence between the applicant and deceased;
- the applicant’s age, health and future income needs;
- the financial circumstances of the deceased’s sons;
- the deceased’s intention to provide for his children.
After balancing the competing circumstances of the applicant and the deceased’s children, the Court awarded the de facto partner $350,000 from the estate.
This case highlights that family provision claims are not determined by relationship status alone. The Court considers all relevant circumstances, including what the applicant has already received and the needs of other beneficiaries.
Can a De Facto Partner Claim If There Is No Will?
Yes. A de facto partner may still have rights if the deceased died without leaving a Will.
When a person dies without a Will, they are said to have died intestate. Their estate is distributed according to the rules set out in succession legislation.
In NSW, a de facto partner may be treated as a spouse for intestacy purposes if the requirements under the legislation are met. This means the absence of a Will does not prevent a de facto partner from receiving an entitlement or making a claim where appropriate.
However, dying without a Will can create uncertainty and increase the risk of disputes between family members. Preparing a carefully drafted Will allows a person to clearly set out their wishes and consider the needs of their partner, children and other beneficiaries.
How Can De Facto Partners Reduce the Risk of Estate Disputes?
While it is not always possible to prevent a family provision claim, careful estate planning can help reduce uncertainty and conflict after death.
Important steps may include:
| Estate Planning Step | Why It Matters |
|---|---|
| Prepare an up-to-date Will | Ensures your wishes are clearly documented and reflect your current circumstances. |
| Review your Will after major life changes | Marriage, separation, children, asset changes or relationship changes may affect your estate plan. |
| Consider a testamentary trust | May provide greater control and protection over how assets are distributed. |
| Review superannuation nominations | Superannuation benefits often pass outside the Will and require separate planning. |
| Seek legal advice | A solicitor can identify potential issues and help structure your estate plan appropriately. |
Frequently Asked Questions
Can an unmarried partner contest a Will in NSW?
Yes. A de facto partner may be eligible to make a family provision claim in NSW if they meet the requirements of an eligible person and can show they were not adequately provided for.
How long do you need to be in a de facto relationship to contest a Will?
There is no specific timeframe that automatically determines eligibility. The Court considers the overall circumstances of the relationship, including its length, financial arrangements, shared life and level of commitment.
Can a de facto partner contest a Will if they were left nothing?
Yes. Being excluded from a Will may be a reason to make a family provision claim, although the Court will consider all relevant circumstances before making an order.
Can children challenge a de facto partner’s inheritance?
Children and other eligible beneficiaries may also have rights to make a family provision claim if they believe they have not received adequate provision from the estate.
Conclusion
A de facto partner may be entitled to contest a Will if they have not received adequate provision from their deceased partner’s estate. However, successful family provision claims depend on the individual circumstances of the relationship, the applicant’s needs and the competing interests of other beneficiaries.
Because estate disputes can be costly and emotionally difficult, obtaining legal advice early can help you understand your rights and options.
For those preparing a Will, careful estate planning and regular reviews can help ensure your wishes are accurately reflected and reduce the risk of future disputes.
This article provides general information only and does not constitute legal advice. You should obtain advice based on your individual circumstances before taking any action.