Family provision claim by a secret De facto partner

George Sclavos (the deceased) died suddenly on 13 August 2013 at the age of 65, leaving an estate of approximately $6 million. The deceased had never married, had no children and no surviving siblings or parents.

In December 2013 probate of an informal will dated 16 October 2012 was granted leaving the whole of his property to his closest living relatives, being his two nieces Cleopatra Calokerinos and Anna Sclavos-Lahana; appointing Cleopatra his executrix.

Okan Yesilhat ( the plaintiff ) brought proceedings against the estate, claiming that he and George were in a secret same-sex relationship for 14 years that is sufficient to qualify him as his de facto partner.

Additionally, the plaintiff claims that the executrix (or someone associated with her) destroyed a will made in his favour; fabricated the October 2012 informal will – which should now be revoked; and, as the deceased’s long-standing de facto partner, the plaintiff is entitled to a grant of administration, and to the benefit of the whole of, the deceased’s intestate estate.

Alternatively, if probate of the informal will were not revoked, the plaintiff claims that as an “eligible person” he is entitled to claim against the deceased’s estate: either as a de facto spouse, or as a dependent who lived with the deceased for a period, or as someone in a close personal relationship living with the deceased.

The payments

In November 2013 the executrix commenced proceedings seeking the return of $380,000 transferred from the deceased’s bank accounts to the plaintiff before and after the deceased’s death on the basis that they are held on constructive trust for, or in the alternative, are owed as a debt to the estate.

The executrix alleges the withdrawals made just before the deceased’s death were not authorised by the deceased. Similarly, the withdrawals after the deceased’s death were all fraudulent misappropriations of funds from the deceased’s estate.

The decision

At first instance, the Court upheld the validity of the informal will, dismissed the plaintiffs family provision claim and entered judgment against him on the executrix’s payment claims.

The appeal

Upholding the primary judgment the New South Wales Court of Appeal held that the plaintiff was not an actual or potential beneficiary in respect of the deceased’s estate nor eligible to claim a family provision order, and had no standing to challenge the informal will.

The court held that the three categories of eligibility claimed involves a requirement that the person be “living with” the other person; a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis: from the evidence, the secret relationship did not meet this requirement and therefore did not amount to common residence.

As a corollary, there was no de facto relationship; dependent household membership; or close personal relationship.

Additionally, the Court held there was no error in finding that the payments constituted loans that the plaintiff was obliged to repay.

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