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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.

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