In Western Australia s 7(1) of the Family Provision Act 1972 provides a list of individuals who are eligible to apply for family provision under s 6(1) of the Act. One of the qualified applicants is someone who was living with the deceased as their de facto partner immediately before their death.
Section 7(1) of the Family Provision Act provides:
(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons –
(a) a person who is married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
Whether the deceased person and the person who claims to be a de facto partner under the Family Provision Act were, in fact, in a de facto relationship immediately before the death of the deceased person is to be determined by considering the evidence at trial in light of the meaning of a de facto relationship, as defined in s 13A of the Interpretation Act 1984 (WA).
In Western Australia, legislation entitles a de facto partner to certain rights over their partner’s deceased estate. Suppose the deceased did not leave behind a valid will. In that case, the de facto partner automatically becomes the primary beneficiary of the intestate estate. Suppose the deceased left a will but failed to provide sufficient provision for their de facto partner. The partner can make a Family Provision Claim against the deceased’s estate.
De Facto Definition
The laws governing de facto relationships differ in Western Australia from those in other states and territories. Western Australia has chosen not to transfer power over de facto relationships to the Commonwealth. Consequently, the definition of de facto relationship specified in the Family Law Act 1975 (Cth) does not apply in Western Australia.
In Western Australia, de facto relationships, including same-sex unions, are protected under the Family Court Act 1997 (WA). This statute does not define de facto relationships. Still, the Interpretation Act 1984 states that a de facto relationship is a partnership between two individuals living together in a relationship similar to marriage. The Interpretation Act outlines a range of criteria to identify whether a relationship is genuinely a de facto union, which includes:
- The duration of the relationship
- Whether the couple resided together
- The nature of the living arrangements
- Whether the couple ever had a sexual relationship
- Dependence or interdependence on a financial level
- Whether the couple owns, uses, and acquires property together
- Mutual commitment to a shared life
- Care and support of shared children
- Social acknowledgement of the relationship.
By definition, a couple who are already married or closely related cannot be in a de facto relationship with each other.
In Western Australia, unmarried couples who live together have similar legal protections and entitlements as married couples. A couple can register their relationship through a civil union or seek an assessment from the Family Court of Western Australia to prove their de facto status. However, it may be more challenging to establish the status of a de facto relationship if one of the partners has passed away and cannot testify to the nature of the relationship.
Family provision
Under the Family Provision Act 1972, a current de facto partner can claim additional provision from the deceased estate. Even a former de facto partner can claim if they were entitled to ongoing financial support from the deceased. Thus, if a de facto partner believes they were unfairly left out of the Will, they can request a redistribution of the deceased estate in their favour. To do so, the claimant must demonstrate that the testator had a moral obligation to provide for them beyond the current terms of the Will. Moreover, the claimant must present a compelling case to the Court that they require financial support.
Background
On August 9th 1956, the deceased was born. He didn’t get married or have any children throughout his lifetime. After being diagnosed with pancreatic cancer, the deceased passed away on November 6th 2019, at the age of 63.
The deceased executed a Will on November 3rd, 2019; probate was granted to the first respondent on November 29th, 2019. In his Will, the deceased:
(a) bequeathed specific pens and watches to the second and third respondents;
(b) gave a quarter of his remaining watches, pens, mobile phones, and leather goods to the appellant, the second and third respondents, and James’ Jim’ Sharland, a friend;
(c) granted his cousin, Patricia Tickel, $5,000;
(d) gave $5,000 to the Cat Haven of Shenton Park;
(e) gave $5,000 to the RSPCA Australia;
(f) gifted $40,000 to the appellant; and
(g) bequeathed the residue of his estate in 33.33 shares to the appellant and the second and third respondents.
The family provision claim
In KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2022] WASC 216 the Court considered the deceased estate to be relatively small in size. As per the statement of assets and liabilities related to the estate, dated May 9th, 2021, the estate’s value was around $99,602.55 after paying off all the debts and expenses, including funeral costs and the repair and sale of the deceased’s residential property. However, this did not account for the value of the collection of pens, watches, mobile phones and leather goods mentioned in the Will. It’s worth noting that $3,500 of legal fees for the estate owed to the executor’s instructing solicitors was still outstanding.
The Will entitled the appellant to $53,700, which included a gift of $40,000 plus an additional amount of $13,700, a 1/3 share of the residue of the estate. The second and third respondents were each entitled to receive $13,700. The appellant’s claim amounted to approximately 54% of the total cash value of the estate.
De facto relationship
The Court stated that, following the decision of G v O, [2022] WASCA 23, the question to be determined was whether the appellant and the deceased:
… had formed a common intention to form a consensual enduring union. What must be ascertained is what was the reason for [the appellant and Mr McLeod’s] adoption of any elements that are generally characteristic of a marriage.
KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2022] WASC 216 at 140
The Court concluded that there was evidence against considering the appellant and the deceased relationship marriage-like. Although the appellant provided financial support to the deceased by paying for their daily expenses and allowing him to use her property as his own, this degree of financial dependence alone, along with a sexual relationship, is also consistent with a relationship of girlfriend and boyfriend. There must be more evidence to infer a marriage-like relationship between them. Apart from sharing food and shelter, they lived very separate lives. They did not generally present themselves as a couple to others, except for the last few weeks of the deceased’s life when he was seriously ill in the hospital.
The deceased did not tell any of his extended family about the appellant’s existence. He spent only two hours with his mother daily and rarely spoke to her about the appellant. When the deceased talked about her, he did not indicate that he was in a long-term committed relationship with her. He described the relationship with the appellant to the only friend he regularly saw as girlfriend and boyfriend. For these reasons, the Court dismissed the application for family provision.
The Court considered whether the appellant’s application for adequate provision would have been allowed if she had been in a de facto relationship with the deceased immediately before his death, even though the judge had already concluded the matter.
In summarising the legal principles that apply to an application made under s 6(1) of the Act in reference to Musasghi v Gebremariam, the Court concluded that had the appellant been in a de facto relationship with the deceased immediately before his death, it would have found that the deceased did not make adequate provision for the appellant.
In addition, the Court would have used its discretion to set aside the gifts to the RSPCA and the Cat Haven and to provide an additional $10,000 to the appellant, observing that a court would be more likely to disturb a testamentary provision in favour of a beneficiary with no connection to the deceased, such as a charity, as opposed to a provision in favour of a dependent relative.
The appeal
In KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2024] WASCA 12 the appellant appealed the order that she had not discharged the burden of proof that she was living with the deceased as his de facto immediately before his death
The appellant based her appeal on two main grounds.
Firstly, that the trial judge was mistaken in concluding that the appellant failed to prove that they were living as the deceased’s de facto partner before his death, based on all the evidence available.
Secondly, that the trial judge made an error while provisionally exercising her discretion to provide for the appellant’s proper maintenance by failing to order the entirety of the deceased estate, except for specific gifts such as pens, watches, mobile phones, and leather goods, to be given to the appellant.
The Court of Appeal determined that the financial requirements and demands of the appellant outweigh those of any other beneficiary. Furthermore, as the deceased’s de facto partner, the appellant has a statutory and moral claim to his estate based on their loving relationship and financial contributions to his well-being.
The moral claim of the appellant was considered superior to that of other non-statutory beneficiaries, including the second and third respondents who provided emotional support to the deceased during his lifetime. The claims of charities and the deceased’s cousin were considered inferior to the appellant’s moral claim.
For these reasons, and given the limited size of the estate, the Court of Appeal considered it appropriate to set aside the gifts made to the deceased’s cousin and each of the charities. However, disturbing the gifts made to the second and third respondents was inappropriate. Whilst the appellant’s need and moral claim is higher than that of either respondent, each respondent had a long-standing and loving relationship with the deceased, who did not have any children. Further, the amount provided by the deceased to the appellant (taking into account the additional $15,000) significantly exceeds the amount the respondents were to receive in the context of the small value of the estate.
In all the circumstances, the Court of Appeal considered that adequate provision for the appellant’s proper maintenance requires that the individual gifts of $5,000 to each of the RSPCA, the Cat Haven and Ms Tickel be set aside and instead be paid to the appellant. The result is that the appellant now receives a total cash amount of $68,700, and the second and third respondents continue to receive cash amounts of $13,700 each.