Family Provision Claims Lawyers Sydney NSW: Carer or de facto partner legal update: Lessons from Sun v Chapman (2022)

Under NSW’s Succession Act, to be an ‘eligible’ person qualified to make a family provision claim from a deceased person’s estate, broadly-speaking, it is necessary to be either:

• married to the deceased at the time of death
• a former spouse
• a child of the deceased
• a person who was financially dependent wholly or in part on the deceased
• a person with whom the deceased person was living in a de facto relationship at the time of death;
• a person with whom the deceased was living in a close personal relationship at the time of death.

In a recent case, the NSW Court of Appeal awarded a carer a substantial provision from a deceased’s estate as it was determined a de facto relationship had existed between them.

Interestingly, given an ageing population and the increasing significance of the role of personal carers, the Court, in our case study below, also made comments on the question of close personal relationships between carers and those cared for in respect of the making of a family provision claim.

What factors contribute to finding the existence of a de facto relationship?

There is no one factor which points to the existence of a de facto relationship. The Court will consider a number of factors, such as those outlined below, in deciding the status of a relationship. The relevant factors are set out in the Interpretation Act (NSW) and include:

• the duration of the relationship;
• the nature and extent of a shared residence;
• whether there is a sexual relationship;
• whether the couple are financially dependent on each other;
• whether the couple own property together;
• the degree of commitment to a shared life;
• the care of any children;
• who performs the household duties;
• the public aspects of the relationship.

Case Study: Sun v Chapman (2022) NSWCA 132

Ms (Rose) Sun and the deceased lived together for 21 years until his death in February 2019. Ms Sun had responded to a newspaper advertisement offering free accommodation in return for domestic services, moving from Canberra to Sydney to do so. At the time, Mr Chapman, the deceased, was 78 and she was 40 years younger. Nevertheless, an intimate relationship developed with Mr Chapman which, Ms Sun claimed, continued for 5 years with an ongoing de facto relationship thereafter. She also said they presented in public as a couple, sharing holidays and some living expenses. Rose’s son lived with the couple for 2 years while finishing his schooling (a factor which the Court of Appeal was to consider inconsistent with a simple carer and patient relationship). That said, the relationship had become fractious in its later years. The deceased had made numerous complaints about her in the last 10 years of his life including some to the police.

Mr Chapman’s Will had been written in 1996, two years prior to the start of the couple’s relationship. The Will left everything to his children. The estate mainly consisted of a house in the Northern Beaches area of Sydney, sold by the executor for $2.4m as well as other assets amounting to $180000.

Ms Sun made an application for a family provision order, claiming this was necessary for her maintenance and advancement in life, no provision having been made for her in the Will. The basis for her claim was she was a de facto partner and/or in a close personal relationship with the deceased.

The claim was dismissed in the first instance. The Supreme Court decided that even if there had been a de facto relationship it had ended given the conflict latterly between them. While possible they were in a close personal relationship, the factors did not warrant a family provision order.

Ms Sun appealed the decision. The Court of Appeal held that the evidence pointed to the existence of a de facto relationship up to the date of death. It found that the temporary nature of their separations and threats by Mr Chapman to replace Ms Sun as his carer were never acted upon. The contribution of Ms Sun to Mr Chapman’s welfare gave her a moral claim that outweighed that of the other beneficiaries who had had little contact with the deceased and contributed little to his welfare.

The Court also opined that the close relationship they had would have made her an eligible person had it not been found that there was a continuing de facto relationship. This was because the care she provided and her dependence on him for accommodation made her ‘a natural object of the deceased’s testamentary intentions’. 

An award of $550000 was made allowing her to pay-off her mortgage. This decision was arrived at despite the relationship having often been turbulent in the latter years.

What does it mean?

Ironically, the disharmony between the couple enhanced rather than weakened Rose Sun’s claim. The Court of Appeal commented that such relationships are not necessarily romantic or harmonious. Moreover, a de facto relationship does not automatically end when one lives separately from the other for health reasons or because it becomes ‘fractious and the parties cease to love each other’.

In an ageing population, more people will need to be provided with the care that family members may not be able, or have the inclination, to provide. A carer who may have been left out of a Will may be able to claim from a deceased’s estate even to the detriment of the other beneficiaries where the evidence supports a ‘close personal relationship’ between carer and deceased.

The case outlined is a reminder of the importance of updating a Will and estate planning to reduce the opportunities for future misunderstandings and conflict.

Contact our Will Contest Lawyers based in Sydney, NSW

If you have any questions concerning the making of a family provision claim or contesting wills claims please contact the expert team at Szabo & Associates Solicitors who can help you with your matter on  02 9281 5088 or complete the online contact form.

Contesting a Will & Deceased Estate Litigation Lawyers, South Australia 

In Australia, the laws concerning Wills and estates are regulated by each State. However, these legal requirements and, for example, the grounds for disputing a Will or estate are very similar across the country. Established in 1994 in Sydney, Szabo & Associates Solicitors can provide specialist advice to those wanting to contest a Will in South Australia or involved in deceased estate litigation. Contact us today on 02 9281 5088.

Disputing a Will generally means either a person believes they have not received a sufficient share of an estate and wish to contest the Will, or there are questions as to its legitimacy, and they wish to make a Will challenge as to its validity. The claimant doesn't need to live in South Australia.  What matters is if the deceased lived in South Australia and/or had assets there.

Contesting a Will in South Australia

Generally speaking, people may leave their possessions to anyone or cause they wish to in their Will. However, a Court may consider this unreasonable and can exercise its discretion to vary the Will. For example, a family provision claim is filed with the Court by a person seeking provision, or a larger provision, from the estate because they consider that they have been left without adequate provision for their proper maintenance, education or advancement in life.

Making a family provision claim

In order to make a family provision claim, it is necessary to be an ‘eligible’ person. To be eligible, it is necessary to fall within one of the categories outlined in the State legislation. These categories include a spouse, ex-spouse, domestic partner, child and, under certain circumstances, a stepchild, grandchild, parent, brother or sister.

In deciding, the Court will consider all relevant factors, including the size and nature of the estate, the applicant’s financial position, their health and ability to earn, their relationship with the deceased and any competing claims.

Time limits for making a claim in South Australia

In South Australia, the time limit to make a claim for family provision is within six months of the date of the grant of probate. This can be extended at the discretion of the Court but cannot be relied on. If you are considering making a claim, it is important you act fast. Our Deceased Estate Litigation Lawyers for South Australia can provide expert guidance and successfully resolve even the most complicated estate litigation. 

Challenging the Validity of a Will in South Australia

A person may challenge the validity of a Will in South Australia if they have an ‘interest’ in the estate. This means they are a beneficiary of the Will in an earlier version, or would have been entitled to a share of the estate had the deceased died without a valid Will.

There are several circumstances where a Will may be considered invalid. Examples include the writer lacking sufficient mental capacity or being subject to undue influence. In addition, the Will itself may be suspected of being fraudulent, or there was a failure to comply with the formalities.

Deceased Estate Litigation Legal Advice 

If wishing to challenge a Will in South Australia, you should seek legal advice at the earliest opportunity. Once probate has been granted, and distribution of the estate has commenced, the opportunity to challenge the validity of the Will is limited. Contact our Contesting a Will Lawyers today. 

Contact our Contesting a Will & Deceased Estate Litigation Lawyers, South Australia 

If you are considering contesting or challenging a Will in South Australia, contact our experts in Contesting Wills and Disputed Estate Litigation Lawyers on 02 9281 5088 or make an online enquiry.

Contact our Contesting a Will Solicitors in NSW - Sydney Solicitors for Contested Wills Claims

While based in New South Wales, Szabo & Associates Solicitors also help people in Queensland, Victoria, Tasmania, Western Australia (WA) and South Australia (SA) with contesting a Will, deceased estate litigation and more. If you are considering contesting a Will, contact our expert Contesting a Will Solicitors in Sydney today on 02 9158 6026 or make an online enquiry.

Defending a Will in New South Wales (NSW) can be a complex and emotionally challenging process. As an executor or administrator, you have the responsibility to protect the wishes of the deceased person and ensure the beneficiaries receive their rightful inheritance. However, there may be situations where the validity of the Will is challenged, or a family provision claim is made, resulting in the need to defend the estate. In this comprehensive guide to defending and contesting a Will, we will provide you with all the essential information and steps to effectively defend a Will in NSW.

Understanding the Need to Defend a Will

Defending a Will may arise in various situations, such as challenges to the validity of the Will, family provision claims, or disputes over the administration of the estate. It is crucial to approach these situations with a clear understanding of your position and the available options.

Defending a Contested Will in NSW

When faced with a family provision claim, the duty of the person defending is to uphold the provisions of the deceased's Will. However, it is essential to act reasonably and consider negotiation and compromise where appropriate. This is particularly important when dealing with smaller estates to avoid excessive legal costs.

As the defendant in family provision proceedings, you will need to provide relevant evidence, including details of the estate's assets, liabilities, and net value, potential notional estate, eligible persons making the claim, and the financial circumstances of the beneficiaries. In some cases, beneficiaries may choose to be separately represented, but they will bear their own legal costs.

What is "contesting a Will"?

Contesting a Will occurs when valued members of the deceased’s family feel they were unfairly left out of a Will or not adequately provided for following that person's death.

The contents of a Will can be challenged in Australia by an eligible person if there is a good reason. This can be based upon a number of factors including whether or not the situation is grossly unfair, financial needs of family members or other dependents, and if the Will maker was subject to undue influence or lacked mental capacity to make the Will.

A family provision claim on the deceased's estate can then be made to the to dispute the Will. It is important to obtain legal advice as soon as possible if you are considering making a claim.

The validity of a Will can also be challenged. This can include things such as whether the Will maker knew of the contents and impacts of their Will and whether the Will maker may have been influenced to include (or not include) particular provisions and/or beneficiaries.

What is a Family Provision Order in NSW?

A Family Provision Order is a legal order that allows a eligible person to claim a portion or all of a deceased person's estate if they believe that they have not been adequately provided for in the deceased's Will. This law is governed by the Succession Act 2006 (NSW).

Under the act, eligible persons include:

• the deceased's spouse,

• the deceased's children,

• the deceased's former spouse,

• Any person who was dependent on the deceased,

• A member of the deceased's household;

• or a person with whom the deceased was living in a close personal relationship at the time of the deceased's death.

A claim for a Family Provision Order must be made within 12 months of the deceased's death. However, the court may allow a claim to be made after this time if it is satisfied that there are sufficient reasons.

The court considers various factors when deciding whether to make a Family Provision Order. These factors include the claimant's financial needs, the nature and duration of their relationship with the deceased, the size and nature of the deceased's estate, and any provision made for the claimant in the deceased's Will.

To make a claim, the family members or other person claiming must commence court proceedings within the relevant time limits. Prior to the court hearing, the family member or other eligible person, must must set out the facts relied on in support of the claim, including details of the claimant's financial circumstances.

Defending a Will Challenge in NSW

When the validity of a Will is challenged, it is usually the executor named in the Will who seeks to prove its validity. The challenger is often a beneficiary under a previous Will or in intestacy. The process typically involves lodging a caveat against a grant being made without court notice.

If the person trying to prove the Will's validity initiates proceedings, the challenger will be joined as a defendant. Additionally, the challenger may initiate their own claim seeking a grant based on a different Will. The evidence presented will depend on the grounds for challenging the Will, such as lack of testamentary capacity, lack of knowledge and approval, undue influence, or fraud.

It is important to note that challenging the validity of a Will can be a lengthy and costly process. Settlement between the parties may be appropriate in some cases to mitigate the risks associated with litigation.

Who Can Defend a Will?

The responsibility to defend a Will usually falls on the executor or administrator of the estate. However, the specific process may differ depending on whether the claim is made under family provision legislation or challenging the Will's validity.

The named executor(s) is the appropriate person to defend the Will and uphold the deceased's wishes. If there is no executor, a major beneficiary may take on this role. In family provision claims, the executor/administrator is usually joined as a defendant. If the executor is making a claim for provision, a beneficiary or independent administrator may act as the defendant. In cases where there is no Will, the appointed administrator or a major beneficiary would defend against a provision claim.

How to Defend a Will

The process of defending a Will depends on the nature of the dispute, whether it involves the validity of the Will itself or a family provision claim. In cases challenging the Will's validity, the executor named in the Will typically initiates proceedings as the plaintiff. The person challenging the Will is joined as a defendant.

Evidence is presented by both parties to support their positions. The nature of the evidence will vary based on the circumstances surrounding the Will's creation and the grounds for challenging its validity. It is important to note that defending a Will can be complex, requiring testimonies from witnesses, medical professionals, and forensic experts. Home-made Wills may present additional challenges due to the lack of reliable witnesses.

Costs of Defending a Will

Generally, a defendant in family provision proceedings can expect their legal fees to be paid out of the estate if they have acted reasonably. However, if the defendant has been overly litigious or acted unreasonably, they may not be successful in recovering their costs. It is crucial for the defendant to uphold the provisions of the Will while attempting to negotiate and compromise with the claimant.

If a plaintiff is successful in obtaining provision from the estate, their party/party costs will typically be paid out of the estate. However, there may be cases where the plaintiff is unsuccessful in recovering their costs due to their conduct or failure to accept reasonable settlement offers. The court may also impose capping orders to limit the amount of costs that can be recovered from the estate, particularly in smaller estates.

Contact Contesting a Will Solicitors in Sydney Today

Defending a Will in NSW requires careful consideration, knowledge of the legal process, and strategic decision-making. As an executor or administrator, it is essential to act in accordance with your duties and uphold the provisions of the deceased's Will. Seeking legal guidance from experienced solicitors specialising in estate litigation is crucial to protect your position and navigate the complexities of defending a Will. If you feel you have inadequately provided for, or unfairly left out of a Will by a deceased person, contact our contesting a Will solicitors in NSW today to ensure a fair and satisfactory resolution for all parties involved.

Szabo & Associates Solicitors have many years experience advising on Wills, Probate, estate administration, estate planning and all related matters. If you need our assistance please contact us on 02 9281 5088 or complete the online contact form.

Contesting a Will & Disputed Estate Litigation Lawyers for Western Australia

In Australia, the laws concerning Wills and estates are regulated on a State by State basis. However, the legal requirements and the grounds for disputing a Will or estate are very similar across the country. Established in 1994 in Sydney, Szabo & Associates Solicitors can provide specialist advice to those considering contesting a Will or disputing an estate in Western Australia. Contact our team today to find out how we can help you on 02 9281 5088 or make an online enquiry.

There are several grounds for disputing a Will, which fall into two broad categories. If there is a query about its legitimacy, a Will challenge can be brought to its validity. If the Will is valid but has not adequately provided for ‘eligible’ persons, this may be the subject of a Will contest. Where a person resides has no bearing on a clam, the relevant factor is that the deceased lived and owned assets in Western Australia. 

Contesting a Will in Western Australia

If a person has been left out of a Will or feels that they have not been adequately provided for, it may be possible to make a family provision claim under the Family Provision Act 1972 (WA).

However, not all family members can make a claim. Those ‘eligible’ to apply for a family provision order in respect of a deceased’s estate in Western Australia are:

• spouse or de facto partner
• former spouse or de facto partner of the deceased (entitled to or receiving maintenance at the time of death);
• child of the deceased living at the date of death or born within 10 months of the deceased’s death;
• stepchild or grandchild (in limited circumstances);
• parent of the deceased.

In making its determination, the Court will consider all relevant factors. This will include, for example, the size of the estate, the financial resources and needs of the applicant, competing claims, contributions made by the applicant and their character and conduct, and their relationship with the deceased.

In Western Australia, a family provision claim can only be made after a grant of probate has been obtained. The time limit to make a claim for an adequate provision is six months from the date of probate. The Court has the power to extend this time limit in certain circumstances.

Challenging a Will's Validity- Deceased Estate Litigation, Western Australia 

When a person challenges a Will, they are questioning the validity of the Will itself. The validity of a Will can be challenged if, for example, it does not meet the formalities as set out in the Wills Act 1970 (WA) or the Will is fraudulent, the subject of fraud or is not the most recent Will. The other grounds for challenge focus on the deceased. Did the deceased have the requisite mental capacity at the time of making the Will, or were they subjected to undue influence or manipulation when making the Will?

Challenging a Will on the basis of its validity should be undertaken before the grant is obtained, so it is important to seek legal advice as soon as possible.

Contact our Disputing a Will & Deceased Estate Dispute Litigation Lawyers, Western Australia

If you are considering contesting or challenging a Will, contact our experts in disputing Wills on 02 9281 5088 or make an online enquiry.