Every person is entitled to “testamentary freedom”. That is, a person is entitled to leave a valid will determining how their assets are to be divided after they die. However, a will is not entirely determinative of how a person’s estate should be divided.
If the terms of a will, or the laws of intestacy (which apply if the deceased has not left a valid will) fail to make adequate provision for a partner, relative or dependent of the deceased, that person may apply to the Supreme Court for a ‘family provision order’.
Family provision claims are often brought by the deceased’s children. However, a particularly challenging situation may arise where the deceased’s spouse, former spouse or de facto wishes to commence family provision proceedings. The situation may be even further complicated where there are other competing family provision claims made against the deceased’s estate.
The first step in bringing a family provision claim is establishing eligibility to commence proceedings.
In New South Wales, the procedure for family provision claims is set out in Chapter 3 of the Succession Act 2006 (NSW) (Act).
The Act provides an exhaustive list of ‘eligible persons’ who may apply for a family provision order. The definition of an eligible person includes the deceased’s children, grandchildren (in certain circumstances), a person who was wholly or partly dependent on the deceased, or the deceased’s spouse, former spouse or de facto partner.
For former spouses, the bar for establishing eligibility is set even higher. A former spouse must also establish that, having regard to all the circumstances of the case, there are factors warranting the making or an order for provision.
Generally, an eligible person must file an application for a family provision order within 12 months of the date of the deceased’s death.
Matters to be considered by the Court
In determining whether to make an order for further provision and the extent of any further provision, the Court will consider a range of factors.
Some of the relevant factors are set out in section 60 of the Act.
However, the factors listed in section 60 are not exhaustive, and the Court may consider additional criteria when considering applications made by de factor partners, spouses and former spouses.
Applications by spouses
The decision in Khreich v NSW Trustee & Guardian  NSWSC 1299 provides guidance on the matters which the Court may consider when a surviving spouse brings a family provision claim. These include:
- the spouse’s present and future needs and the circumstances of any competing claimants;
- the extent of any further provision necessary to ensure the spouse is secure in the matrimonial home, can maintain the lifestyle to which they are accustomed and to account for any unforeseen contingencies, such as ill-health or unemployment;
- the Court will give greater weight to claims where the parties have entered into a formal and binding commitment to mutual support; and
- the spouse’s capacity to independently provide for him or her self.
Applications by former spouses
The Court will consider additional factors where a claim is brought by a former spouse. The Supreme Court of NSW in Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian  NSWSC 535 sets out the additional factors relevant to claims brought by former spouses, which can be summarised as follows:
- where the deceased and former spouse were parties to family law proceedings, for property settlement orders, or have reached an amicable agreement for the division of matrimonial property, the Court is reluctant to disturb those arrangements. However, a person is not disqualified from making a claim merely because of an existing property settlement order;
- the Court must examine the actual relationship between the deceased and the former spouse, without forming a view based only on the fact that the parties are separated; and
- ultimately, the former spouse must establish that the deceased owed an obligation to provide for their former spouse.
Applications by de factos
Despite the greater weight given to claims where the parties have committed through marriage to “a formal and binding commitment to mutual support”, the Court is increasingly adopting a uniform approach to claims by spouses and de factos.
However, a significant hurdle for de factos seeking to make a family provision claim is establishing that a de facto relationship did, in fact, exist at the time of the deceased’s death.
The existence of a de facto relationship was disputed in Frisoli v Kourea  NSWSC 1166 and the court was required to examine the factors relevant to determining whether a de facto relationship existed between the deceased and the plaintiff. These can be summarised as follows:
- the extent and duration of the de facto relationship;
- sharing of a common residence;
- the existence of a sexual relationship;
- the degree to which the plaintiff was financially dependent on, and supported by, the deceased;
- shared ownership, use and acquisition of property;
- care and support of children;
- performance of household duties and shared household responsibilities; and
- reputation and public perception of the relationship.
Competing claims by de factos, spouses and former spouses
So, how does the Court approach multiple, competing claims brought by a spouse, former spouse or de facto?
In the Estate of the late Anthony Marras  NSWSC 915, the defendant, Maria, and the deceased were married from 1958 to 1980. The deceased married his second wife, Effy, in 1982 before they separated in 2008, although they never divorced. Maria claimed she rekindled her relationship with the deceased in late 2008.
Maria brought a family provision claim on the basis that she was in a de facto relationship with the deceased at the time of his death. Effy filed a cross-claim under section 125 of the Act, seeking a share of the deceased’s property.
In examining the nature of the de facto relationship between Maria and the deceased, the Court looked at the extent of any co-habitation and the nature and length of their relationship. The Court examined personal aspects of Maria’s and the deceased’s lives, including Maria’s visits to the deceased’s farm, the fact that the deceased never moved into Maria’s apartment in Sydney, the deceased’s failure to visit Maria when she was recovering in hospital after surgery and the deceased’s failure to assist Maria to clear her debts. The Court also accepted evidence that Maria had later said she “hated the deceased” and regarded him as “disgusting”.
After balancing all of these factors, the Court determined that Maria and the deceased were not in a de facto relationship. Maria’s application was dismissed.
The Court awarded 10% of the balance of the estate to Effy. In determining that Effy had demonstrated a need for further provision, the Court placed particular weight on the fact that Effy needed to clear her debts in order to obtain secure accommodation. The Court also took into account Effy’s need to provide for her three young children.
Further Information and contact details
Family provision litigation is complex and requires expert knowledge of the substantive law, along with the rules of evidence and civil procedure. Pigott Stinson regularly acts for plaintiffs and defendants in family provision proceedings. If you have any questions, please contact:
Daniel Fleming | Partner | email@example.com
Cameron Sydes | Solicitor | firstname.lastname@example.org
Eleni Bastoulis | Solicitor | email@example.com