Estate of MPS, Deceased  NSWSC 482 – Family Provision Application.
In order to bring a claim against a Deceased estate in NSW, you must be an eligible person as defined in section 57 of the Succession Act 2006 (NSW) (the Act). The Act provides that one category of eligible person is “a person with whom the Deceased person was living in a close personal relationship at the time of the Deceased person’s death”.
Many people would have varying views on what a close personal relationship between two people looks like, however the Act defines a close personal relationship as a “close personal relationship (other than a marriage or de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”.[i]
In the recent case of Estate MPS, Deceased  NSWSC 482, the Supreme Court dealt with a family provision claim brought by a man (the Plaintiff) who claimed he was in a close personal relationship with the Deceased. The Deceased died without a will, leaving no spouse, children or parents, which left her only brother as the sole beneficiary and administrator of her estate.
The Plaintiff claimed he met the Deceased in 1979 and had a sexual relationship with her at one point in time. They subsequently separated. Their relationship was rekindled in August 2014, when the Deceased was terminally ill, and continued until the Deceased’s death in 2014. The Plaintiff claimed that during this time, he was the Deceased’s carer and that he had lived with the Deceased (despite having separate residences) so that he could attend to the Deceased’s needs.
The concept of living together in this situation focused on the quality of the relationship between the Plaintiff and the Deceased, rather than the physical aspects of the relationship. The Court accepted the definition of ‘living together’ was not constrained to requirements that people had to live together as a couple or have sexual relations, live in only one residence, or spend all their time together.
The Court held that the domestic support and personal care that the Plaintiff provided to the Deceased was within the meaning of the legislation, and was not for a fee or reward, which would have invalidated the Plaintiff’s close personal relationship claim. The Plaintiff did not expect payment in exchange for domestic support and personal care provided to the Deceased, and if any payments were made, they were incidental of the parties’ relationship.
The relationship between the Plaintiff and the Deceased was one of a domestic nature, and not a business arrangement. It was built upon a pre-existing friendship and renewed personal contact. These were the dominant factors for the domestic support and personal care provided by the Plaintiff to the Deceased, which ultimately led the Court’s finding that a close personal relationship existed
[i] Section 3(3) Succession Act 2006 (NSW)
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