Under ordinary circumstances the Will of the deceased will be followed sans anyone contesting the distribution of the deceased’s assets. But this isn’t always the case. There can be times when someone who believes that they have been inadvertently or inappropriately left out, as a beneficiary of the estate, can come forward to make a claim against the assets of the deceased’s estate. This is called contesting a Will.
Who Can Contest a Will?
Generally, persons who can contest a will are;
- family members,
- a former spouse or
- de facto partner.
However, on occasion a person who can show that they were in a financially dependent relationship with the deceased and counted on financial support from the deceased for food, shelter, clothing or an education, can also make a claim against a Will that they have been left out of.
For What Reasons Can a Will be Contested by a De Facto partner?
Some of the reasons a Will can be contested by a de-facto partner include;
- Not being properly considered in the Will
- Being left out of the will entirely
What are the Actions that a De Facto Partner Must Take to Contest a Will?
A de facto partner must make an application to the court in order to contest a Will. This application is known as Family Provisions Claim.
First the de facto partner must be able to show that they were, in fact, a legitimate de facto partner in accordance with the Succession Act 2006 (NSW). Some of these factors include;
- The couple lived together in a true domestic partnership for at least 2 years prior to the death of their partner
- They shared household expenses
- The couple held joint accounts
- The couple lived at the same address
- What was the nature of their sexual relationship
- How did their family and friends view their relationship?
To make this claim the de facto partner must show at least one, if not more, of the following factors that would entitle them to have been a beneficiary of the deceased’s estate.
- Did the couple have children together that they were both financially responsible for?
- Did the couple rely upon each other for financial support?
- Did the couple share financial resources?
- Was the couple in a committed relationship?
- Did the relationship resemble a marriage, for all intents and purposes?
If the Court determines that a combination of these factors exist to categorize the relationship between the petitioner and the deceased as a de-facto relationship, and the living partner has not been provided for in the Will or has been inadequately provided for, the Court can determine that the de-facto partner is entitled to some or more of the deceased’s estate.
While it is not usually anticipated that a Will is going to be contested, it can happen. In these instances, if you believe that you are entitled to some or more of your deceased partner’s estate, it is best to seek legal advice. There are several factors that must be met, legally, before a claim can be considered viable. As such, seeking legal counsel can help sort out what a de facto partner might be allowed to receive from the estate of their deceased partner.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.