The NSW Supreme Court can make a family provision order under Ch 3, of the Succession Act, concerning the estate or notional estate of a deceased person, to provide from that estate for the maintenance, education or advancement in life of an eligible person.
An “eligible person” includes a person with whom the deceased was living in a de facto relationship or a close personal relationship, at the time of the deceased’s death: s 57(1)(b) and s 57(1)(f), the term.
Under s 21C of the Interpretation Act 1987 (NSW) (the Interpretation Act), a person is in a de facto relationship with another person if, relevantly, they have a relationship as a couple living together.
In Sun v Chapman  NSWSC 955 the plaintiff, Ms Wei Sun, also known as Rose Sun (Rose), sought a family provision order from the estate of the late Robin Alan Richard Chapman, (the deceased) under s 59 of the Succession Act 2006 (NSW)
Rose and the deceased met at a caravan park and after exchanging correspondence he invited her to come to Sydney to look after him.
The deceased’s son Michael Chapman (the Executor) submitted that the deceased told him that Rose had responded to a newspaper ad seeking someone to provide domestic services in exchange for free accommodation.
Between 1998 and the deceased’s death on 2 February 2019 Rose and the deceased lived together. Rose submitted that they had an intimate relationship for about four or five years from about 1999, and witnesses reported seeing them holding hands in public.
In 2003 the deceased declared in a statutory declaration that he and Rose were living together in a de facto relationship. However, there was evidence of considerable antagonism between Rose and the deceased during the last five years of the deceased’s life.
The deceased died on 2 February 2019, having made his last will on 22 October 1996 (the Will).
Probate of the Will was granted to the Executor on 29 November 2019.
The Will provided for the deceased’s principal property to be sold with one-third of the net proceeds of the sale to be distributed, to the Executor and, the remaining two-thirds, equally among the deceased’s other children. 18 beneficiaries are entitled to share in the deceased estate.
Unfortunately, the intended effect of the Will was unclear as it was handwritten on a printed form without the assistance of legal advice. However, the parties agreed on how the Will should be construed.
Rose claimed that she was either:
- a person with whom the deceased was living in a de facto relationship at the time of his death; or
- a person with whom the deceased was living in a close personal relationship at the time of his death.
In determining whether two persons have a relationship as a couple, the court takes the following circumstances into account:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- the care and support of children;
- the performance of household duties; and
- the reputation and public aspects of the relationship.
In determining whether there is a relationship as a couple there is an implication the parties have a general obligation to
‘marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and private, correspondence during separation.’Tulk v Tulk  VLR 64, p 65, per Cussens J
At first instance, the court found that at the date of the deceased’s death, it is more likely than not that the deceased and Rose were living in a close personal relationship.
However, in refusing Rose’s application for a family provision order the Court was not persuaded…
“that, at the date of Richard’s death, he and Rose were living together in a de facto relationship.”Sun v Chapman  NSWSC 95 at 121
Close personal relationship
Section 3 of the Succession Act, provides that a close personal relationship is a close personal relationship, other than a marriage or a de facto relationship, between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
After considering all the circumstances the court must be satisfied that there are factors warranting making the application for a family provision order.
However, where one member in a close personal relationship provides the other with domestic support and personal care for a fee or reward they are not eligible to make a family provision application.
The Court of Appeal
Rose appealed the decision in Sun v Chapman  NSWCA 132;
‘Consortium vitae’ is accepted as the indicator of a marriage relationship, including the various elements which go to make up a marriage.
The Court of Appeal took the following matters into account in finding a de facto relationship existed:
- Rose lived rent-free in the deceased’s residence;
- any physical separations between the two was temporary;
- the couple had a romantic relationship including holidays that occurred as late as 2017;
- Rose consistently visited the hospital when the deceased was ill;
- and that arguments between the couple bore similarities to that of arguments between married couples.
Their relationship, at least in the later years, was evidently not a loving one. But that does not mean that they had ceased to live together as a couple.Sun v Chapman  NSWCA 132 at 98
The Court of Appeal held that the consortium vitae was never severed, and the de facto relationship continued until the deceased’s death. Further:
“…a de facto relationship (does not) cease to be such because it becomes fractious and the parties cease to love each other”Sun v Chapman  NSWCA 132 at 70
The Court of Appeal held that the primary judge erred by not finding that Rose and the deceased had been in a de facto relationship at the time of his death.
In a family provision claim the court has to weigh a testator’s freedom to leave their estate as they wish against their moral duty to
“his widow of a long marriage…to make provision for her to ensure that she is secure in her accommodation, has an adequate income and a fund for modest luxuries and contingencies” Steinmetz v Shannon  NSWCA 114 at -, Sun v Chapman  NSWCA 132 at 172
In this case, the Court held that Rose’s financial need was a result of gifts to her son therefore the deceased’s moral duty did not go beyond providing Rose with sufficient funds to discharge her mortgage debt.
The Court assumed that the Department of Veterans Affairs would reinstate Rose’s war widow pension, if not Rose could bring a claim under s 59(3)(a) of the Act providing that where there has been a ‘…substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person’.
The Court awarded Rose $555,000 from the estate to discharge her mortgage, with the estate to pay her costs.