In a recent decision of the Supreme Court of NSW[i], the Court has reiterated the need of a person claiming they were in a de facto relationship to be prepared to submit proof of such a relationship. Mere assertion that you were in such a relationship, without more, is not going to get you over the first hurdle of being deemed an eligible person under the Succession Act to make a claim for family provision against a deceased estate.
In this matter, the deceased had left a will. In the will he had used Serbian words to describe an intended recipient. The words were not formally translated into English, however the executor, the son of the deceased, claimed the words meant “my friend and cleaner.” The Plaintiff denied that this was a reference to her. This meant that the will had made no provision for her (which tended against the relationship).
The Executor denied the existence of the relationship, and said it went no more than a friendship with romantic involvement. The Plaintiff attempted to rely on medical notes of the deceased that referred to her variously as partner, girlfriend, and ex-partner. There was no other contemporaneous evidence filed on behalf of the Plaintiff that would satisfy the Court that, on the balance of probabilities, she was in a de facto relationship with the deceased.
Section 21C of the Interpretation Act ought to have been used as guidance by the Plaintiff and her solicitors in preparing the case, and to submit contemporaneous documents that would tend to the conclusion they were in a de facto relationship. The failure of the plaintiff to submit this evidence was ultimately what led to her claim being dismissed.
Ironically, had she conceded that the Serbian reference in the will as a reference to her, then she may have overcome the hurdle of ‘eligible’ person.
The Court did not need to look at the issue of adequate provision. However as the Plaintiff tried to widen the categories of ‘eligible person’ that applied to her at hearing to include being dependent on him and someone residing with him at one time, the Court was required to assess the ‘factors warranting’ component.
The Plaintiff failed on this argument, as the limited factors submitted indicated that if anything, the deceased was dependent on her, and there were insufficient factors warranting a claim being made.