Contesting a Will as a person living in a Close Personal Relationship

A person who is living in a Close Personal Relationship as at the date of death of the deceased person is an Eligible Person pursuant to section 57 of the Succession Act 2006.

Close Personal Relationship is a close personal relationship (other than by marriage or de facto (who are eligible in their own right)) between two adults, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. The Succession Act 2006 excludes from this definition a person who is being paid to provide the domestic support or a person providing the support on behalf of another person or organisation (i.e. a charitable organisation). A Close Personal Relationship is often found in circumstances where the claimant falls short of establishing a de facto relationship along with friends or family members living with and caring for the deceased to make a claim. The requirement for ‘domestic support and personal care’ is also commonly achieved by supporting evidence of shopping, cooking and cleaning.

Because of the category of eligibility a person claiming eligibility under Close Personal Relationship must also establish that there are factors which warrant the making of an order. This means that there must be circumstances which give the person the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. This is not an easy hurdle to overcome. Being named in a will (including prior will) or having a strong personal relationship will often assist with a finding that there are factors which warrant the making of an order.

Eligibility does not mean that the person living in a Close Personal Relationship with the deceased at the time of their death will be successful in contesting the will.

If the Court is satisfied the person is an Eligible Person and there are factors which warrant the making of an order the Court will determine whether the provision in the will (or if there was no will in accordance with the rules of intestacy) made for the person living in a Close Personal Relationship with the deceased was inadequate. If the provision is inadequate then the final stage is the determination of what amount, if any, should be paid to the person living in a Close Personal Relationship from the estate of the deceased person (in addition to the amount they are already entitled to under the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the person living in a Close Personal Relationship with the deceased.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the person living in a Close Personal Relationship by the deceased before or after death.
• whether the person living in a Close Personal Relationship with the deceased was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the person living in a Close Personal Relationship with the deceased.

Although ultimately each case turns on its own particular circumstances, contesting the will as a person living in a Close Personal Relationship requires careful analysis of each requirement under the Succession Act 2006 and supporting credible evidence for each. A lawyer experienced with this field of law will ensure all aspects of the claim are properly supported by evidence to ensure the best possible result.

If you are an executor of a deceased estate, or a person living in a Close Personal Relationship with the deceased at the time of death and feel that you have been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.