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“De facto partner” or carer? Claims by carers who say they are ‘partners’ in deceased estates. Who can make a family provision claim?

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Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy joins Robyn Hyland for “Law Talks” on Radio 4CRB to discuss a captivating legal case that blurs the lines between “carer” and “de facto partner”. The discussion explores the complexities that arise when a carer claims to have become a ‘lover’ or partner and the implications for inheritance rights when one party dies without including the other in their Will.

Summary

De facto partners have the same inheritance rights as married couples in Australia, whether the deceased dies with or without a Will.

However, disputes over deceased estates often arise when one party must prove that they were the de facto partner of the deceased at the time of death.

Proving the existence of a de facto relationship can be challenging, especially if the relationship was intermittent or if the de facto partner also acted as the caregiver for the deceased before their death.

In the case of Sun v Chapman [2021] NSWSC 955, we see how complex inheritance disputes involving de facto relationships can be and what evidence a judge will consider when determining whether someone is entitled to further provision from an estate.

This case revolves around a family provision claim by Ms Rose Sun against the estate of Mr Richard Chapman, who passed away in 2019.

The dispute that unfolded circled the issue of whether Rose was the live-in carer (or person in a close personal relationship (CPR)) or de facto partner of Richard at the date of his death.

There were doubts whether Rose’s statement about how she had met Richard was true. The executor argued that Rose was Richard’s carer, having responded to an advertisement Richard had placed in his local newspaper around the same time they met, seeking domestic assistance. 

Rose and Richard: Establishing a de facto relationship

Rose met Richard in 1998 and began a relationship that lasted 20 years until Richard died in 2019. They lived together for most of the duration of their relationship. However, they slept in separate rooms, allegedly because Richard snored loudly. Despite sleeping in separate rooms, Rose claimed that an intimate relationship existed.

When they first met, Rose was in her 30s, and Richard was in his 70s.

According to Rose, she met Richard on a trip to the Perisher Valley in the Snowy Mountains. At the time, Rose lived in Canberra, and Richard lived in Sydney.

Rose stated that during the trip, they exchanged addresses with the intent to write letters to one another. When Rose returned to Canberra following the trip, she exchanged letters for some time with Richard.

Rose later moved to Sydney after taking up a job caring for children. She only held the job for several weeks.

Around October 1998, Rose reached out to Richard and, shortly after, moved in with him.

Rose got another job washing clothes in a laundry, and later that same year, working as a waitress.

Rose stated that when she was not working, she would spend her time with Richard intimately and that a de facto relationship commenced some years after they began cohabiting.

Rose and Richard travelled together, went on cruises and overseas trips, and spent much time together.

Rose claimed that she had stayed together with Richard in a de facto relationship for 20 years until the date of his death, and she never had another relationship with anyone else during that time.

There were legal documents that also supported Rose’s claim that she was in a de facto relationship with Richard, including paperwork from the time Rose applied for a VISA and citizenship. In these documents, Rose and Richard had made statements about their relationship and their intent to marry in the future.

The Will

When Richard passed away, he left behind a handwritten “do-it-yourself” Will, which had a significant omission – it did not recognise Rose as his de facto spouse.

Richard’s family situation was complex. He had four children, three predeceased him, and 14 grandchildren.

Richard’s estate had an estimated value of $2.6 million, comprising a Sydney property, bank accounts, shares, and vehicles.

His handwritten Will, prepared without legal assistance, outlined his wishes to distribute his assets upon death. He instructed that his property was to be sold and the net proceeds distributed as follows:

  • One-third to the executor – his son;
  • Two-thirds divided equally among the remaining children.
  • Additionally, various gifts were designated for the grandchildren whose parents had predeceased Richard.


The Will was made before Richard met Rose so she was not mentioned as a beneficiary.

Following Richard’s death, Rose contested the Will and commenced a family provision application as his de facto partner at the time of his death, or failing that, a person in a close personal relationship with the deceased.

The Outcome

English was not Rose’s primary language. Therefore, any evidence she provided had to be translated.

Despite Rose submitting evidence to prove that she was Richard’s de facto spouse, including photographs of their time spent together travelling abroad, the evidence was inconsistent and contradictory. The court deemed Rose an unreliable witness.

The executor was able to defend Rose’s claim by:

  • Arguing that Rose had come into Richard’s life after responding to an ad that Richard put in a local paper seeking domestic assistance from a carer.
  • Claiming that Richard introduced Rose as his carer.
  • During a period of time when the executor was living with Richard and Rose, he claimed that he did not observe any affection or intimacy toward one another, and Richard referred to Rose during this time as his carer.
  • There were also police statements taken over the years following the police being called to the residence. There were inconsistencies in the complaints made to the police, with some references to a current de facto relationship and other instances where the pair clearly stated that they had previously been in a de facto relationship but were no longer intimate and it was strictly a patient-carer relationship.


Based on the evidence, the judge sided with the executor and dismissed Rose’s family provision claim. The judge found that Rose and Richard’s de facto partnership had ended before Richard died, and that they were not in a relationship at the date of his death.

The judge ordered Rose to pay the estate’s costs.

However, Rose appealed the decision.

The Appeal – Sun v Chapman [2022] NSWCA 132

The Court of Appeal disagreed with the original judgement and reviewed the evidence of the existence of the relationship. The court considered whether the de facto relationship between Rose and Richard had concluded before his death and what Rose would be entitled to if she were eligible to make a family provision claim.

The court considered the following:

  • Rose and Richard started living together in 1998; however, Richard’s last Will pre-dated the relationship. It was written in 1996.
  • Richard did not at any time communicate that the relationship had ended.
  • Even though the intimacy had ended some time before Richard’s death, that did not mean their de facto relationship came to an end.


After reviewing all the evidence, the court found that the de facto relationship between Richard and Rose had continued up until his death, notwithstanding that they had spent substantial time apart as a result of Richard’s ill health and spending time in hospital.

The relationship between the patient and carer was not inconsistent with an ongoing de facto relationship.

Further, the court acknowledged that a de facto relationship does not cease to be such because it becomes fractious, and the parties cease to love each other.

The Court of Appeal awarded Rose $555,000 to discharge her mortgage and ordered the estate to pay her costs of the proceedings and the appeal in the sum of about $267,000.

Distinguishing between a person in a close personal relationship (CPR) and a de facto relationship

The distinction between a person in a close personal relationship and a de facto relationship is crucial in a family provision claim as it can affect a person’s eligibility to claim on a deceased person’s estate.

Here’s a breakdown of each category:

Close Personal Relationship (CPR)

A person in a close personal relationship is a broader category that encompasses various types of relationships where individuals may have a legitimate claim on an estate.  This eligibility category is not available in Queensland.

CPR includes family members, friends, caregivers, and other individuals who had a close and significant relationship who were living with the deceased at the date of their death.

If someone makes a family provision claim under the criteria of CPR, they do not need to be in a formal or legally recognised relationship with the deceased, such as marriage or a de facto partnership.

The focus of a CPR claim is on the nature and quality of the relationship, including financial dependency and the level of support provided by the deceased.

Whilst a person in a close personal relationship is still eligible to make a family provision claim on an estate, their claims generally have added hurdles.

De Facto Spouse

A person who was in a de facto relationship with the deceased at the date of their death must only prove their relationship. In NSW, a de facto spouse does not need to prove they have factors warranting the making of their claim.

The Court will consider a number of matters including:

(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

Determining what entitlements someone should receive when they make a family provision claim as either a de facto spouse or someone with a close personal relationship to the deceased is a discretionary exercise.

The court has the power to make this assessment and it is usually based on a number of factors including, but not limited to, the claimant’s personal and financial circumstances and their level of dependency on the deceased, the moral responsibility the deceased had to the individual, and the community expectations.

Each case is determined on its own facts and merit.

Key takeaway

Sometimes, people may not recognise their relationship as a ‘de facto’ one, but from a legal standpoint, a relationship might exist that imposes obligations on one party to make provision for that person in their Will. This situation arises frequently.

Complex family dynamics and relationships are just one of the reasons why consulting with an experienced estate planning lawyer is crucial when creating a Will. This professional guidance ensures that your Will and other estate planning documents accurately reflect your intentions, reducing the risk of future disputes over your estate.

As life unfolds, it’s essential to regularly review your Will. Life circumstances change, relationships evolve, and your Will should adapt to these changes.

If you find yourself in the role of an executor and need to defend against a family provision claim, seek advice from an experienced estate litigation lawyer who practices exclusively in this area. Estate disputes can become messy and protracted, but having the right legal professional by your side can expedite the resolution process, allowing all parties to move on with their lives as quickly as possible.

Attwood Marshall Lawyers – experts in estate litigation

For anyone who has been left out of a loved one’s Will and believes they should be entitled to further provision, get trusted advice from a lawyer who practices in this area so that you can understand your rights and get your claim underway, without exacerbating conflicts or prolonging the process. 

Estate disputes can be extremely complex and strict time limits apply. It is important to understand the options available and the likelihood of making a successful claim before taking legal action.

Attwood Marshall Lawyers has one of the largest and most experienced estate litigation teams with senior lawyers who practice exclusively in this area. Our lawyers have the knowledge and skills to act for people in any jurisdiction in Australia, understanding how the legislation differs between each state and territory.

We can talk you through the legal tests that could be applied to your case, whether you are a beneficiary seeking more provision or an executor defending a Will.

If you need advice or would like to find out more about Attwood Marshall Lawyers Estate Litigation services, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 at any time.

Our team are available at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.

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april kennedy estate litigation lawyer

April Kennedy

Special Counsel
Estate Litigation

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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