De Facto Claims & challenging a Will: Who gets a say?

ABC TV’s Fisk has returned to our screens for more adventures in her suburban Probate law office in Melbourne.

So what has Helen been up to? She’s still wearing her signature brown suit, but she’s no longer banned from the downstairs coffee shop (now under new ownership and selling “blended beverages”) and she’s sharing her office with a photocopier, prone to overheating.  

Her first client, Leslie, arrives, recently bereaved after her mother passed away. To make matters worse, the tenant living in the granny flat on her Mum’s property has made a claim to her estate and wants to contest her Will.

The tenant, a man named Keith Budge, who has no money set aside in the Will, claims that he is entitled to $30,000 from the estate because he and Leslie’s mother were in a relationship.

So how do these situations happen? Does anyone have a claim to money from a Will if they allege a relationship? Our expert Wills and Estates lawyer Bianca Stafford explains. 
 

How does contesting a Will work?  Can people just claim intimate relationships, like Keith Budge in this episode? What proof is required?

When someone dies but hasn’t left any or enough money (called “adequate provision”) in the Will to support of their spouse, child or certain dependents, then those people can make a family provision application to the court (i.e. contest the will) to have the situation corrected.

In the Fisk episode, Keith Budge claimed that he was in a de facto relationship with the deceased – the client’s mother.

In Queensland, in order to meet the definition of de facto a person must prove that they and the person who died had lived together, as a couple, on a genuine domestic basis, continuously for at least 2 years up until the person’s death.  

To decide if two people meet this definition, some of the circumstances that can be considered are:

• The length of their relationship;
• The nature and extent of their common residence;
• Whether or not a sexual relationship existed;
• The degree of financial dependence or interdependence;
• Their ownership, use and acquisition of property;
• The performance of household tasks; and
• The reputation and public aspects of their relationship.

How do people prove these things?

When we act for de facto spouses in these situations, generally we need detailed evidence to prove someone was in a legitimate de facto relationship and has standing to make a claim - especially if the other party is alleging that two people were in a casual or non-committed relationship. 

Some evidence might be:

• evidence of joint bank accounts, joint assets and shared expenses
• lease agreements or mail showing that they lived at the same address
• photographs of the couple, messages, cards and letters to each other, and
• statements from family members and friends as to their knowledge and understanding of the relationship.

These claims are often not as straightforward as a marriage (for example) where copy of the marriage certificate can simply be produced.  

Fisk refers to “Nuisance claims” where people claim small enough amounts of money ($30,000 in this instance) knowing that it’s often easier for the estate to just pay them the settlement rather than spend more money on legal fees. What is the advice you’d give to people if they experience this?

In the episode example of Keith Budge’s claim, it was quite obvious, when questioned, that he was not in a de facto relationship with the deceased.

However, in cases where there is conflicting or insufficient evidence, it may be difficult to say for sure how the court will decide the matter. In these situations, where there is uncertainty and a higher risk, it may be more practical to settle the matter early on, rather pursue the matter further and increase legal costs.

It is important that if you intend on making a claim in an estate or are an executor defending an estate, that you seek legal advice as soon as possible. There are strict limitation dates that apply to family provision applications, and these can vary from state to state.

What are ways that people can protect their loved ones from challenges like this? Is it possible to make Wills stronger so that challenges are harder?

The best way people can protect their loved ones from challenges like this is to have their will prepared by an experienced wills and estates solicitor, who can identify potential risks to their estate and give them specific advice on how to minimise those risks.
 

Disclaimer: This content is not endorsed by the ABC and Maurice Blackburn has no association with the ABC. Views and legal commentary are our own.