As the streets of Sydney donned the rainbow flag for Mardi Gras over the weekend, Attwood Marshall Lawyers’ Estate Litigation Senior Associate Martin Mallon reported from our Sydney office to take a look back at two landmark legal developments that helped solidify the rights of same sex couples and their eligibility for making a claim on their partner’s estate after death.
Sydney WorldPride Festival is taking place between 17th February and 5th March, celebrating Australia’s diverse lesbian, gay, bisexual, transgender, queer, intersex and asexual (“LGBTQIA+”) community and incorporating the nation’s beloved Mardi Gras parade as well as a Pride march across Sydney Harbour Bridge.
The festival, which will host roughly 200 events over two and a half weeks, coincides with a big year for gay rights milestones. 2023 marks the 50th anniversary of the first Australian Gay Pride Week, the 45th anniversary of the first Sydney Gay and Lesbian Mardi Gras, and comes after the fifth anniversary of Marriage Equality in Australia.
Australia has made progress with respect to equality of persons who identify as LGBTQIA+, but despite this, such individuals still face discrimination and challenges. For example, some jurisdictions in Australia permit conversion therapy and religious and other organisations can discriminate against LGBTQIA+ teachers, students and people utilising services on the basis of their sexual orientation.
Recent research indicates that family dynamics can be particularly strained due to a person’s sexual orientation. This can pose unique challenges for LGBTQIA+ people involved in estate planning and disputes. For instance, a parent may disapprove of their LGBTQIA+ child’s identity, sexual orientation, or lifestyle, leading to estrangement and the child being left out of their parent’s Will.
Family members may also not recognize a same sex relationship between a couple who have chosen not to marry, which can prove contentious when one partner dies and the other seeks to make a claim on their estate or superannuation death benefits.
Notwithstanding the unique challenges faced by the LGBTQIA+ community in estate planning and disputes, legal remedies are available to ensure their rights and interests are protected.
A landmark Victorian case dating back to 2012 involving the first successful Family Provision Application claim by a same sex partner advanced the rights of persons who identify as LGBTQIA+, followed by the legalization of same sex marriage in Australia six years later.
Before delving into the detail of these two important developments, it’s useful to look at the criteria for lodging a Family Provision Application.
Family Provision Application
A Family Provision Application is a process that allows certain individuals to contest a Will for a share or larger share from the estate of the deceased person.
In Queensland, S.41 of the Succession Act 1981 sets out who is eligible to file a Family Provision Application. This includes:
- The deceased’s spouse, i.e. husband and wife, de facto partners, civil partners or former partners. This includes same sex de facto partners.
- The deceased’s children, whether natural, stepchildren or adopted children, and
- The deceased’s dependents
In New South Wales, there is an additional category for eligibility under which an LGBTQIA+ person can contest a Will:
- A person who was, at any particular time, wholly or partly dependent upon the deceased at the time of their death and was either:
- a grandchild of the deceased person; or
- at that particular time or any other time, a member of the household of which the deceased person was a member.
And in Victoria, the eligibility is wider still, and includes a person to whom the deceased had a responsibility to make provision in his/her Will.
An adult child who has had little or no contact with their parents due to his/her/their sexual orientation remains eligible to file a Family Provision Application. Further, if a family does not recognize a same-sex relationship, the surviving partner of that relationship is entitled to contest a Will on the same grounds as heterosexual de facto partners.
Once an applicant establishes they are an eligible person, the Court determines Family Provision Applications in a two stage process:
- Has the applicant been left without adequate provision from the estate for his or her proper maintenance and support; and
- If yes, what provision ought to be made from the estate
Read more: LGBTI rights in challenging Wills
There are strict time limitations that apply in Family Provision Applications, and these differ in each jurisdiction. If you are considering filing a Family Provision Application, it is important that you seek advice from a lawyer who practices exclusively in this area, as soon as possible, because any delay may seriously prejudice your rights and interests. Click here to learn more about the time limitations.
Landmark Victorian case for the LGBTQIA+ community – Estrella v McDonald  VSC 62
The 2012 decision of Estrella v McDonald is the first case in which a plaintiff sought further provision as a same-sex domestic partner of the deceased in the Supreme Court of Victoria.
The plaintiff, a Filipino man, made submissions at trial that he had been in a secret same-sex domestic relationship with the deceased from December 1985 until the deceased’s death in September 2008. The pair met in the Philippines in 1978, when the plaintiff was 17 years old, and the deceased was 52 years old.
The deceased left his $2.5 million estate to his four surviving children to the exclusion of the plaintiff. The plaintiff filed a Family Provision Application in the Supreme Court of Victoria seeking the sum of $900,000 from the deceased’s estate. The children defended the claim, arguing that although the plaintiff lived in their father’s home between December 1985 and April 1996, the pair had not been in a romantic or de facto relationship. Instead, they contended that the plaintiff was a boarder or lodger.
As an alternative or secondary case, the plaintiff argued that if the Court did not agree that he and the deceased were domestic partners at the time of the deceased’s death, the deceased still had a responsibility to provide provision for him in his Will for his proper maintenance and support. The deceased had previously left legacies for the plaintiff in two previous Wills, in 1989 and 1999.
In his ruling, handed down 29 February 2012, His Honour, Justice Lansdowne AsJ gave relevance to the homosexual nature of the relationship, concluding that the plaintiff was unable to prove a de facto relationship in the usual way – such as recognition from their friends and family that they were a couple – due to the deceased’s embarrassment and belief that the relationship would not be accepted by their families or the community. Marriage was also not possible at that time, as same sex couples were not allowed to legally tie the knot in Australia until new laws in December 2017.
His Honour concluded that the deceased had a responsibility to make provision for the plaintiff in his Will for the following reasons:
- Although the plaintiff was not living with the deceased at the time of his death, they had lived as domestic partners for at least ten of the 30 years they had been in a relationship and had intended to resume living together as a couple just before the deceased died;
- the relationship was one of affection, sexual intimacy, care, and emotional support, as proved by email and telephone contact between the pair when the plaintiff worked overseas from 2004 and in person when he returned to Australia periodically up to the deceased’s death;
- Based on the evidence, the relationship between the plaintiff and the deceased was the most significant relationship in their lives other than their own families.
The deceased’s children argued that if the Court was persuaded to make further provision for the plaintiff from the estate for his proper maintenance and support he ought to receive no more than $50,000. His Honour disagreed with the defendants and ordered that the plaintiff receive the sum of $300,000 from the estate. The parties were heard on the question of costs.
Same sex marriage plebiscite in Australia – 7th December 2017
Following the decision of Estrella v McDonald, another significant development in LGBTQIA+ rights occurred when a majority of Australian voters supported the recognition of same sex marriage.
It’s been five years since the law changed to allow same sex couples to wed in Australia. The legalization of same sex marriage was passed by the Australian Government on 7 December 2017 and received royal assent from the Governor General the following day. The move automatically recognized overseas marriages and allowed new weddings to take place from 9th January 2018. Some couples were able to obtain exceptions to the usual 30-day notice period, however, which meant the first same sex weddings in Australia took place in December 2017.
The government took the step after a fractious campaign and a voluntary postal survey in which 61.6% of Australian voted yes to marriage equality and in support of the legislative change. The Liberal National Party Coalition, led by Malcolm Turnbull, reluctantly agreed to the postal plebiscite and there were many internal ructions within the government of the day due to the conservative members of Parliament opposing same sex marriage. It was ironic that many of the conservative objectors suffered failed marriages themselves or had sordid private lives.
In terms of estate disputes, proof of marriage eases the often time-consuming and stressful processes that a same sex de-facto partner must undergo to prove that they meet the definition of a “de-facto partner” when making a superannuation death benefit claim. If a LGBTQIA+ person elects to get married, they are not required to prove their relationship or entitlement to the superannuation death benefits when their partner dies.
Attwood Marshall Lawyers are one of Australia’s leading Estate Litigation law firms
It is undeniable that LGBTQIA+ persons are subject to extensive challenges in the context of estate litigation. No one should lose out on a right in an estate for unfair reasons or because the deceased died intestate (without a valid Will). It is important that LGBTQIA+ individuals are informed of their legal rights to help them cope with these issues and navigate the complex legal processes to claim what is rightfully theirs.
If you feel you have been unfairly excluded from a Will or not adequately provided for, obtaining legal advice at the earliest opportunity will allow you to take the appropriate steps to rectify the situation and recover your potential entitlements in an estate.
Attwood Marshall Lawyers Estate Litigation team have extensive experience making claims in all jurisdictions across Australia, and, in particular, proudly representing members of the LGBTQIA+ community.
To understand your rights, contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email email@example.com or free call 1800 621 071.
Want to write someone out of your Will? Beware: the “black sheep” of the family may still be entitled to claim on your estate!