Family Provision Claims & De-facto Relationships

The most common form of estate or will challenge is what is known as a family provision claim. Any family provision claim requires the claimant to be eligible – which, if you are not in certain categories at law, becomes a matter of fact to be determined by the Court. For example, a person living in a de-facto relationship or ‘in a close personal relationship’ with the deceased person is a matter of fact to be determined on the evidence in Court.

The New South Wales Supreme Court has recently handed down a decision in Sheen v Hesan [2023] NSWSC 468 which considers this kind of estate dispute, where de-facto partner brough a claim against the deceased’s estate. In this case, the nature of the relationship, and therefore the eligibility to make a claim over the estate, was disputed.

What is a family provision claim?

A family provision claim is an application to the Court that proper and adequate provision has not been made for a person that the deceased, and the deceased had an obligation to make that provision.  Adequate and proper provision includes provision for a person’s maintenance, education, or advancement in life. Such a claim is usually brought when the eligible person is given nothing under a will or given a smaller provision than they expected.

Can I make a claim over my de-facto partners estate?

For an individual considering a claim on a de-facto partners estate, there are two main questions to consider: eligibility and adequate provision.

Only “eligible persons” may apply to the Court for these types of order. The criteria for eligibility differs between the States and Territories. Each state includes different requirements for those in a relationship, though not married. For example:

• In NSW, a person may be eligible under the Succession Act 2006 (NSW) if they are in de-facto relationship at the time of the deceased’s passing and the facts will be considered in light of the items in s21C of the Interpretation Act 1987 (NSW).
• By contrast, in the ACT, a person may be eligible under Family Provision Claim Act 1969 (ACT) where they were a domestic partner of the deceased person at any time, for at least two continuous years or had a child with them if less than that time.

If the claimant is found to be an eligible person, they will then have to prove that adequate and proper provision has not been made in the circumstances, and that there are factors warranting an order for provision. In its determination, the Court may consider a variety of factors, including the applicant’s financial circumstances and future needs, as well as and any competing claims by others on the estate.

Sheen v Hesan [2023] NSWSC 468

In the recent case of Sheen v Hesan [2023] NSWSC 468 the New South Wales Supreme Court considered a claim for provision brought by Doe Hwa Sheen (known as “Winnie”) over the estate of the deceased Mohammad Bashir Zaheer. In this case, the deceased died without leaving a will.

Winnie sought the courts recognition of her relationship as a de facto relationship with the deceased as otherwise she could not make a claim on the estate. Typically, de-facto partners are entitled to provision under intestacy as a spouse if they were in a relationship of more than two years at the date of death. The Court considered the characterisation of their sometimes tumultuous relationship of some 13 years. Ultimately, the Court found that Winnie was an eligible person to bring a claim due to the nature of her relationship with the deceased, namely, being a member of the same household and partly dependent on the deceased, but did not find that there was de-facto relationship ending shortly before his death.

The Court then found that adequate provision had not been made for Winnie under the rules of intestacy, which would divide the estate solely between the deceased’s siblings (because she was not the de facto spouse). Therefore, the Court ordered the provision of 15% of the deceased’s estate to Winnie, the rest to be divided between his eight siblings.

How can we help?

This case underscores the central importance of getting clear and comprehensive advice on the circumstances of your claim. Our specialist lawyers will consider your circumstances in light of the relevant legislation and potential Court outcome in order to give you an understanding of what options you have. Contact our specialist estate contest solicitors to discuss your options.