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Family Provision Claims by Defacto Spouses

We recently acted for the successful De facto spouse in a family provision claim against her deceased partner’s estate.

The deceased died aged 77 years leaving a Will appointing the NSW Trustee and Guardian as his Executor and dividing the whole of his estate for his two children. The Deceased’s Will failed to make any provision for his spouse.

As a result, our client was forced to bring an application for family provision under s59 of the Succession Act 2006 (NSW).  During the course of the proceedings, the Executor and Beneficiaries argued that our client was not an eligible person to bring a claim as she had not been in a marriage like relationship with the Deceased, despite many indicators which showed otherwise.

The Court ultimately determined that the deceased was for many years, and remained at the time of his death, the “loved partner” of our client.  The Court made an order in favour of our client in the sum of $220,000, which equated to approximately a one third share of the residue of the estate, with the balance of the estate being divided between the Deceased’s two adult children.

In addition, shortly prior to the hearing, it was determined that our clients health had declined to the point that she was suffering a legal incapacity which prevented her carrying on the proceedings in her own name. To ensure we could carry on the proceedings for our client, we arranged for one of our clients children to carry on the proceedings as her tutor.

We are very pleased to have obtained such a positive result for our client at such a difficult time in her life. The full judgement is available for consideration on the NSW Case Law website:

If you require any assistance, or have any questions regarding this topic, please do not hesitate to contact Kym on 0416 102 577 or Jack on 0449 146 186.