De Facto Will Disputes

The Estate of Peter Wolfgang Porada, Late of Pericoe [2017] NSWSC 818

Relationships can be complicated at the best of times, but even more so when one of the parties dies and the other is left to prove their relationship before the Court.

In order to make a claim for further provision from a deceased estate, you must be an eligible person, as defined by Section 57(1) of the Succession Act 2006 (NSW).  One category of eligible persons, is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death[1].

In the recent case of Wilson v Porada, the Deceased died without a Will, leaving his siblings to inherit his estate under the laws of intestacy.  The Plaintiff claimed that she was the de facto widow of the Deceased and filed Court proceedings seeking orders for provision from the Deceased’s estate.

The Plaintiff relied upon evidence that the Deceased carried out odd maintenance jobs around her home, left clothing and toiletries at her home, and kept his motorcycles, which were of a significant value, at her home. However, the Judge did not view such evidence as strong indicators of a continuing de facto relationship, but a choice made by the Deceased to maintain a civil relationship with an ex de-facto partner and still allow the Plaintiff a place in his life.

The Defendants claimed the Plaintiff and the Deceased were “just drinking buddies” after their separation. However, the Judge viewed their relationship as one that continued as “friendly neighbours, who helped each other out” and was characterised by the “closeness and mutual understanding of people who had once been in an intimate relationship and still had a level of personal friendship”; but such a friendship is not to be mistaken for a continuation of their de facto relationship.

Further, the Plaintiff admitted to being in a relationship with another man in 2012/2013, which the Judge could not reconcile with the Plaintiff’s claim of a continuing de facto relationship, with the Deceased post their relationship breakdown in 2009.

Accordingly, the Judge held that the parties were no longer in a de facto relationship post 2010.  However, as the Plaintiff had a strong financial dependence upon the Deceased during their de facto relationship and lived in a household with the Deceased during this period, the Judge held that the Plaintiff qualified as an eligible person under Section 57(1)(e) of the Succession Act 2006 (NSW) during the period from 2004 to 2009, and should receive a gift from the estate.  Hence, although the Judge rejected the Plaintiff’s claim as a de facto partner of the Deceased at the time of his death, the Plaintiff received the sum of $75,000 from her ex-de facto partner’s estate as provision for succeeding in an alternate claim of being a dependant of the Deceased during period of their de facto relationship from 2004 to 2009. ………[1] Succession Act 2006 (NSW) s 57(1)(e)

If you wish to dispute a Will or need to find out your legal position in relation to a de facto relationship, call Sydney Wills Lawyers today for a consultation. Our offices are conveniently located in Macquarie Street, Sydney, CBD and close to public transport. Experts in all areas of  Estate Litigation for over 20 years! 

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