Glendower:

I can call spirits from the vasty deep.
 

Hotspur:
Why, so can I, or so can any man;
But will they come when you do call for them?
 
Henry The Fourth, Part I Act 3, scene 1, 52–58
 
So the question is not whether same-sex partners can challenge a will. Anyone can. The question is whether the challenge or contest will succeed. That may take a clever and persistent lawyer, but in New South Wales, under the 2007 case of Nelligan v. Crouch, success is possible. What are your chances? Let us perform a very lawyerly manoeuvre and break the question down into smaller questions.
 

What Does it Take to Contest a Will?

 
There is a technical difference, lost on most laypeople, between challenging a will because it appears to be the result of fraud, forgery, undue influence or lack of mental capacity, and contesting a valid will because its provisions are unfair. If you have reason to suspect that the former is true, by all means raise those suspicions with your attorney. Even those who are simply friends or caregivers of the deceased may challenge the validity of a will.
 
Suppose, however, that you have no reason to doubt the will’s validity, but you believe that you were treated unfairly. To be frank at the outset, you should know that courts are very reluctant to overturn a deceased person’s last wishes, even when flint-hearted. However in NSW, the Succession Act (2006) creates a very limited presumption that decedents may have a moral obligation to provide for the maintenance, education and advancement in life of eligible persons, depending on their needs. Claims made on this basis are termed “family provision” claims.
 
To contest a will on the basis of family provision, an individual must first establish that he or she is an “eligible person”. Historically, same-sex partners have had difficulty doing this. Nelligan broke new ground by recognizing that a same-sex partner might be an eligible person, even though, in that situation, the partners had not lived together for some years. This raises the second issue, which is that the existence of a spouse-like relationship may be difficult to demonstrate in the absence of an actual marriage. And, of course, qualifying as an eligible person is only the first step of the inquiry.
 

Who is an Eligible Person?

 
That term “eligible person” includes:

  • Spouses,
  • Former spouses,
  • De facto spouses, including same-sex partners,
  • Members of the deceased’s household who were dependent on the deceased and
  • People in close personal relationship who lived with the deceased.

How Can I Show that My Partner and I Were De Facto Spouses?

 
In determining whether a de facto relationship exists, courts look at a number of factors, including
 

  • How long the relationship lasted,
  • Whether the parties lived together,
  • How finances were arranged,
  • Whether there was a sexual relationship,
  • Whether you owned property or cared for children together and
  • How the relationship was presented in public.

 
No single factor is necessarily dispositive. Obviously, the facts can become complicated. What about former de facto spouses? What about best friends who live under the same roof, have something of an on-again-off-again sexual relationship, but have never held themselves out as partners? People often have multiple and varied relationships during the course of a lifetime. Imagine a contest involving several potentially eligible people. A spouse, former spouse, live-in lover, and a financially dependent, but now platonic friend walk into a bar……
 
Of course, even if a court finds that a same-sex partner is an eligible person under the Succession Act, the contest may still fail if the court finds no moral obligation (because of estrangement, for example), or determines that the surviving partner has sufficient means to forego support from the decedent.
 

What Can I Do if the Contest Fails?

 
You are stunned. You and your same-sex partner held yourselves out as de facto spouses for many years and, yet, the court denied your family provision claim, holding that you were not an eligible person. The law can take strange and unpredictable turns, but all may not be lost. You may be able to challenge the will on a number of other theories.
 
What if your partner promised to provide in her will for your children from a prior relationship? In exchange, you left your job to care for her during her long last illness. She never had the chance to change her will. When strictly observing the letter of the law would create an injustice, courts may be amenable to more creative approaches.
 
A court may be persuaded to find that you and your partner created a contract by exchanging promises. It may summon spirits from the vasty deep to treat the situation as if a trust had been created. A skillful estate lawyer should have an array of arguments and approaches at hand.
 
If you believe that you should have been provided for under your same-sex partner’s will, schedule an appointment to speak with an experienced estate attorney at Owen Hodge Lawyers. Our offices are conveniently located in Sydney and Hurstville, and we want to help you get what you deserve. If you are considering contesting the provisions of a will, you must do so within 12 months of the decedent’s death, so do not hesitate. Call us at 1800 770 780.  We will be happy to help you evaluate your situation and advise about a course of action.

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