Failure to update Will leads to Family Provision and Superannuation Death Benefit Claims. Court satisfied that de facto partner of 7 months entitled to bulk of Super ($200,000) and equal share of other Estate Assets.

The client was the de facto partner of the Deceased (“the Client“). She sought a Family Provision Order on the basis that she had not been provided for in any way in the will of the Deceased.

The Deceased died unexpectedly as a result of an accident, and left a Will in which he appointed his mother as his Executor (“the Executor“) and gave his entire Estate to his two (2) children. He had separated from his children’s mother and become divorced about 10 years before his death.

The Deceased’s main assets were a property in which he lived that was valued at approximately $250,000.00 (subject to a Mortgage of approximately $80,000.00) and a Superannuation Death Benefit of approximately $200,000.00.

The Client had made an application to Trustee of the Deceased’s Superannuation Fund for the entirety of the Death Benefit to be paid to her, however, an objection to that course was lodged by the Executor. The Trustee subsequently became a Defendant to the proceedings and indicated that it would play no active role and simply defer its decision as to whom and how it is to pay the Death Benefit until all legal proceedings in relation to the Estate were finalised.

The Client was divorced and had three (3) adult children. She lived in modest accommodation that she rented, and worked part-time in a retail position. She did not have any assets of great value.

The Deceased’s two (2) children were both in their early 20’s and, similarly, lived in rented accommodation and did not have any assets of great value.

The terms of the Deceased’s Superannuation Fund were such that, if she could establish that she was the de facto partner of the Deceased, she would become entitled to receive the Death Benefit. That was a hotly contested issue in the case, and was of crucial significance to Client’s claim.

Proving de facto status would mean that the Client would receive approximately $200,000.00 directly from the Superannuation Fund and significantly improve her financial circumstances. On the other hand, failing to establish that she was in a de facto relationship with the Deceased would mean that the Death Benefit would become part of the Estate and, subject to her claim for a Family Provision Order, stand to be divided equally between the Deceased’s children.

On any view of the evidence, the time that the Client had lived with the Deceased was short. On the case advanced by the Executor, the Client had only lived with the Deceased for a period of about three (3) months before his death, and that there was a “close personal relationship” but not a de facto relationship of the type that would entitle her to payment of the Death Benefit.

On the other hand, the Client argued that she had lived with the Deceased for seven (7) months prior to his unexpected death, that they had been in a relationship for a lengthy period before that, and she had only delayed moving in with the Deceased because she was concerned about how their respective children (and, in particular, the Deceased’s son, who had lived with the Deceased up until that time) would react.

Based upon the evidence relied upon by the Client, the Court ultimately accepted the existence of a de facto relationship.

It followed from that finding that, after an adjustment that was made by the Court to take into account the costs incurred in connection with the proceedings and the circumstances in life of the Deceased’s children, the Client received the vast majority of the Death Benefit (and, by extension, about an equal share of the net assets of the Deceased).

That allowed her to find appropriate accommodation for her to live in and retain an amount in reserve that she could use for any contingencies or unexpected expenses that arose.

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