A friend of mine called me the other day to ask who could bring a claim in a family provision action.
So who is an “Eligible Person ” under the act?
(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.”
A Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.
So what does Dependence on the Deceased mean under the act it is considered to be a person who at a particular time “wholly or partly dependent upon the deceased person “.
A person who for a substantial period prior to the deceased’s death was dependent or at other times “a member of a household of which the deceased person was a member.”
Importantly the requirement of a Close Personal Relationship other than a de facto relationship is defined by case law as
“a close personal relationship between two adult persons…living together, one of whom provides the other with domestic support and personal care”.
The definition calls for a two-step test:
The parties are “living together”.
And that “one or each of whom provides the other with domestic support and personal care”.
For example, a boarder in an elderly widow’s home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together.
The second requirement is cumulative. There must be both domestic support and personal care.
Domestic support may be the provision of free accommodation and meals, shopping for both parties, washing clothes etc.”
Therefore the cooking of meals; Choosing to spend time in each others company; Their sexual relationship, choices about the furnishings and fittings of property and their travel together all indicate a close personal relationship.
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