When blood isn’t thicker than water: NSW Supreme Court makes family provision order for de facto partner of the deceased, reducing the children’s share

The recent decision of McGuire bht McGuire v New South Wales Trustee and Guardian [2023] NSWSC 1013 provides helpful guidance on the eligibility of a de facto partner to receive a family provision order as well as the matters a Court considers when making a family provision order under the Succession Act 2006 (NSW) (the Act).

Background

The relevant facts were:

• The deceased, Victor Reed Warren, died on 14 July 2021 leaving a will dated 31 January 2003 (Will).
• Under the Will, the deceased provided for his two children, Sharlene and Bradley, to receive his estate in equal amounts (worth $787,903.72 prior to proceedings).
• The applicant, Eileen McGuire, was not provided for under the Will.
• The applicant sought a family provision order out of the deceased’s estate on the basis that she was in a de facto relationship with the deceased at the time of his death.

The Court was required to determine:

• whether the applicant was in a de facto relationship with the deceased at the time of his death, and thereby eligible to receive a family provision order; and
• if the applicant is eligible, what provision should be made for her out of the deceased’s estate.

Eligibility of de facto partners

The applicant submitted that she was an eligible person as the de facto partner of the deceased at the time of his death.

The Court considered the factors listed in s 21(C)(3) of the Interpretation Act, and found that the applicant and the deceased were in a de facto relationship. In coming to this conclusion, the Court gave particular weight to the following matters:

• the deceased managed the applicant’s finances;
• the pair shared household duties, and;
• the pair had been in a relationship for 14 years.

The Court reached this conclusion even though there was some evidence that deceased no longer wanted the applicant to live with him but could not “seem to get rid of her”.  The Court held that disharmony in a de facto relationship does not bring it to an end and “a de facto relationship does not cease to be such because it becomes fractious”.

On the other hand, in circumstances where there has been a physical separation and an intention to sever the relationship, the Court will be more inclined to find that the de facto relationship has come to an end.

Making a family provision order: ‘maintenance, education or advancement’

Once the Court is satisfied that an applicant is an eligible person, it may make a family provision order in relation to the estate of a deceased person. This involves a two-stage test:

• First, it considers whether the applicant has been given adequate provision for their maintenance, education or advancement in life from the estate; and
• Second, if the answer to the first question is no, it determines what further provision should be made out of the estate.

If the first stage has been satisfied (i.e. the Court has found that the applicant has not been given adequate provision), the Court has a wide discretion to determine the form of relief to be granted under the second stage.

In this case, Court echoed Wild v Meduri [2023] NSWSC 113 at [1004] noting that ‘the Court is empowered to order such provision from the deceased’s estate as the Court thinks fit, but the Court is not empowered to award more than what is [an] adequate provision’, requiring consideration of the applicant’s ‘proper maintenance, education or advancement in life’.

The Court considered the matters outlined at s 60(2)(a)-(p) of the Act and had particular regard to:

• the applicant’s cognitive impairment;
• the fact that the applicant was the ‘loved partner’ of the deceased;
• the high degree of dependency the applicant had on the deceased at the time of his death.
• at 75 years old, the applicant was expected to live for approximately 15 years.

The Court also referred to the authority Steinmetz v Shannon (2019) 99 NSWLR 687 which stands for the proposition that in the absence of special circumstances and provided that the testator has sufficient assets, the Court will normally follow as a broad general rule that the duty of a testator to their widow/widower is to ensure they are provided with accommodation to which they has become accustomed to and a fund to meet unforeseen contingencies.

Ultimately, the Court found that the deceased had an obligation to make provision for the applicant out of his estate and ordered that the applicant receive a lump sum of $220,000.

Key Takeaways

The Act sets out categories of persons who are eligible to bring a claim for further provision out of the estate of a deceased, which includes de facto partners.

In determining whether a person was in a de facto relationship with the deceased, the Court may consider the matters outlined in s 21C(3) of the Interpretation Act 1987 (NSW) (Interpretation Act).

When determining whether to make a family provision order, the Court adopts a two-stage test:

• First, it considers whether the applicant has been given adequate provision for their maintenance, education or advancement in life from the estate; and
• Second, if the answer to the first question is no, it determines what further provision should be made out of the estate.

McCabes has extensive experience in estate planning and estate disputes, including family provision applications. Please do not hesitate to contact us if you require advice or assistance.