Can a De Facto Partner Contest a Will in NSW?
Yes. A surviving de facto partner can contest a will in NSW by making a family provision claim if the deceased has not made adequate provision for them. This may arise where the partner has been left out entirely, receives an insufficient gift or is left with uncertain accommodation arrangements.
Being unmarried does not prevent a claim. However, you may need to establish that you were in a qualifying de facto relationship at the time of death. Eligibility also does not guarantee an award.
At PB Ritz Lawyers, we can assess your relationship, financial circumstances and the estate to advise whether you have grounds to seek further provision.
What is a family provision claim?
A family provision claim asks the Supreme Court of NSW to order provision, or further provision, from a deceased person’s estate. Under section 59 of the Succession Act 2006 (NSW), the Court considers whether adequate provision has been made for an eligible person’s proper maintenance, education or advancement in life.
The claim can proceed even if the will is valid and accurately records the deceased’s wishes. Challenging a will’s validity, for example because of lack of testamentary capacity or undue influence, involves different legal issues.
When is a de facto partner eligible?
Section 57(1)(b) recognises a person who was living in a de facto relationship with the deceased at the time of death as an eligible applicant.
The relationship’s legal character matters more than the label used by either family. Describing someone as a boyfriend, girlfriend, companion or partner does not conclusively establish or defeat eligibility.
Section 21(C) of the Interpretation Act 1987 (NSW) provides the relevant definition. It recognises qualifying registered relationships and relationships between two people living together as a couple who are not married to each other or related by family. Same-sex and different-sex relationships are recognised.
For an unregistered relationship, the Court considers the circumstances as a whole. Relevant matters include its duration, shared residence, financial arrangements, property ownership, mutual commitment to a shared life, care of children, household duties and how the relationship was presented publicly. No single factor is an essential checklist item.
Must we have lived together for two years?
There is no fixed two-year minimum for eligibility as a de facto partner under the family provision legislation. A shorter relationship may qualify, although its duration and nature remain relevant to proving the relationship and assessing the claim.
Confusion often arises because different rules apply where a person dies without a will. For intestacy, section 105 of the Succession Act defines a domestic partnership by reference to a qualifying registered relationship, or a de facto relationship that continued for at least two years or resulted in the birth of a child.
Those intestacy requirements should not be treated as the eligibility test for a family provision claim. We can advise which rules apply if there is no will or if the will deals with only part of the estate.
What if the deceased’s children deny the relationship?
Disputes sometimes arise when adult children regard the surviving partner as a friend, occasional companion or housemate. The executor’s or beneficiaries’ opinion does not finally determine your legal status.
Evidence should show how the relationship operated in daily life. A useful starting point is a chronology explaining when it began, the living arrangements, shared responsibilities and what was happening around the time of death.
Relevant material may include bank statements, household expenses, leases, address records, messages, travel records and correspondence describing your shared plans. Statements from people who observed the relationship can also help. Any relationship registration certificate should be provided to your solicitor.
Separate bank accounts or an absence of jointly owned property do not automatically defeat eligibility. However, inconsistent records, long absences or competing accounts of the relationship may require careful explanation. Preserve original documents and messages rather than relying only on recollection.
Can we be de facto partners while maintaining separate homes?
Maintaining separate residences does not necessarily resolve the question. The Court must assess whether the arrangements amounted to living together as a couple in the legal sense, considering the whole relationship.
The reasons for separate accommodation, time spent together, domestic routines and commitment to a shared life may all matter. Regular visits or an intimate relationship alone do not necessarily establish de facto status.
Hospitalisation or residential care before death also calls for careful assessment. Physical separation for care is not necessarily the same as ending the relationship, but an earlier shared address alone does not establish that the relationship continued until death.
What does the Court consider when deciding the claim?
Eligibility is the first step. The Court must also assess whether the provision made is adequate and, if it is not, what further provision should be ordered. Section 60 identifies matters relevant to that assessment.
Financial resources and future needs
Your income, assets, debts, superannuation and earning capacity may be relevant, together with age, health, retirement needs and responsibilities to support others. Owning some assets does not automatically prevent a successful claim, but all resources must be disclosed.
Housing and financial security
A surviving partner may need secure accommodation and enough income or capital to meet ordinary expenses. A right to occupy a home may require close examination: who pays repairs and outgoings, can the property be sold if your needs change, and what happens if you need residential care?
The relationship and contributions
The Court may consider the relationship’s nature and duration, financial and non-financial contributions, care provided to the deceased and benefits already received. Giving up paid work to care for a partner may be relevant to both contributions and future financial needs.
The estate and competing claims
The estate’s size, liabilities and available assets matter, along with the circumstances of children, a spouse and other people with competing claims. There is no automatic entitlement to the whole estate or a fixed percentage. The Court considers the individual circumstances.
Can I claim if my partner deliberately left me out?
Yes. A deliberate decision to exclude a de facto partner does not, by itself, prevent a family provision claim. Reasons recorded in the will or another document may be relevant, but they do not conclusively determine the result.
Likewise, leaving a small gift does not automatically protect the estate. The question is whether the provision is adequate in the circumstances, taking account of the estate and competing claims.
What if my partner was still married to someone else?
A de facto relationship can exist even if one partner remains legally married to another person. The marriage does not automatically exclude the surviving de facto partner from eligibility.
It may, however, create competing claims requiring careful assessment. We discuss claims by legally married spouses separately in our article on spouse family provision claims in NSW. Click here to view the article.
A former de facto partner is in a different position. If the relationship ended before death, that person does not qualify simply as the current de facto partner. Another category may apply, including previous dependency and household membership, but its requirements must be established separately.
What should I do after my partner dies?
Seek advice promptly, obtain the will if available and gather evidence of the relationship and your financial needs. We can request estate information from the executor and assess both eligibility and the likely merits of a claim.
An early protective step is to notify the executor of the proposed claim and seek an undertaking not to distribute the estate while it is addressed. If protection cannot be agreed, urgent Court relief may need consideration. A probate caveat is not the appropriate mechanism for a family provision claim alone.
Do not assume that every asset associated with your partner forms part of the estate. Jointly owned property, superannuation and other arrangements may require separate investigation. NSW notional estate provisions can sometimes be relevant, but their statutory conditions must be met.
What is the time limit?
A family provision application generally must be filed within 12 months of the date of death under section 58(2). The period does not start when probate is granted or when you first see the will.
Correspondence and settlement discussions do not stop the clock. A late application may be possible with the parties’ consent or the Court’s permission on sufficient cause being shown, but you should not assume that an extension will be available.
Can the claim settle through mediation?
Yes. Family provision proceedings are generally referred to mediation, where parties can negotiate a resolution without a final hearing. Settlement discussions should be informed by the evidence, likely outcomes and costs.
Court-annexed mediation does not involve a mediator or venue fee, although legal preparation and representation still involve costs. Private mediation is another option. If the matter does not resolve, it may proceed to a hearing.
How can PB Ritz Lawyers help?
We can assess whether you qualify as a de facto partner, identify the evidence needed, investigate the estate and advise whether further provision is justified. Where the relationship is disputed, we can help present a clear account supported by documents and witnesses.
We offer No Win, No Fee arrangements for approved family provision claims, subject to our assessment and costs agreement.
If your partner’s will leaves you without adequate financial or housing security, contact PB Ritz Lawyers. Early advice can help you understand your position and protect your ability to claim.
