The Facts

Disputed circumstances of meeting between older man and younger woman

An elderly man met a younger woman in 1998. The circumstances of that meeting were in dispute between the woman and the man's son, who was the executor of the estate.

The woman claimed she had met the old man at a caravan park in Perisher, in the Snowy Mountains of NSW. However, the man's son claimed his father told him she had responded to a newspaper advertisement seeking someone to provide domestic services in exchange for free accommodation.

The man invited the woman to come and live with him in Sydney to look after him.

Woman relocates from Canberra to move in with man

The woman relocated from Canberra to Sydney in 1998 to live with the man. At this time he was aged 78 and she was aged 38.

They went to beaches and clubs together, went to the movies and went shopping. The man helped the woman find work as a waitress.

The pair shared expenses and bills.

Evidence of de facto relationship

The pair began an intimate relationship and were seen holding hands in public. In July 2001 the woman was granted a spouse visa (temporary).

During the time the woman lived in the house, she had her own room. However, she spent some nights in the man's room and claimed they had a sexual relationship over the years.

The pair went on many overseas trips and cruises together, including trips to Thailand, China and Singapore. On these trips they would share a room and bed.

In 2003 the man made a statutory declaration in support of the woman's application for an Australian permanent residency visa, stating that he had been living with the woman for five years in an ongoing de facto relationship and "we are very happy together".

The statutory declaration mentioned plans to make arrangements for the couple's wedding. The man and woman continued to live together for the following 15 years until the man died.

For two years their residence was also shared by the woman's son, who emigrated to Australia as a 16-year-old in 2002. The son lived at the house until he was 18 years old and had completed his secondary education.

Evidence of dementia and fractious relationship before man dies

The pair fought passionately during the final years of the old man's life. Police reports indicated that they had been called on numerous occasions between 2014 and 2018, with complaints being made by each of the pair against the other.

When they fought the woman would leave and stay with her son or with a friend for a day or two. The man would then call to ask her to come back and she would return.

Medical evidence presented to the court showed that the man had a dementing condition. This evidence was supported by police notes, which stated that the man often contradicted himself in his interactions with them, made little to no sense when speaking to police and "had been getting angrier" as time passed.

Woman applies for family provision order after man's death

The man died in February 2019 at the age of 97, leaving behind an estate valued at $2.5 million.

The deceased's will was drafted in 1996, before he had met the woman. The will had not been amended or updated at any time after that. The will was handwritten and filed with the courts.

The deceased's son was the executor and principal beneficiary of the will, which did not include the woman.

The woman applied for a family provision order under section 59 of the Succession Act 2006 (NSW) to obtain some part of the estate.

The NSW Supreme Court found that the pair were not in a de facto relationship at the time of the man's death and therefore the woman was not entitled to make a claim on the estate.

The woman appealed the decision to the NSW Court of Appeal, which had to determine whether the appeal should be allowed and if so, whether the Supreme Court had erred in its decision.


The case for the son (executor)


The case for the woman

  • My father was never in a de facto relationship with the woman who was employed as his carer. They kept their finances separate and my father never referred to her as anything other than his carer.
  • I never saw them display any affection towards one another in a romantic way or use endearing names to one another.
  • Even if they were a de facto couple for a time, that relationship had ended before my father died.
  • If she lived in a separate room, how could they have been in a de facto relationship?
  • It's true that in 2003 my father declared that he was living in a de facto relationship with the woman, but that was only to help her obtain permanent residency.
  • My father told me that "as soon as she got her citizenship she turned nasty". He planned to get rid of her and employ another carer, because he became increasingly frustrated by her neglect of him.
  • Neighbours witnessed many arguments between the two, particularly in the final years of my father's life, with the police being called on many occasions.
  • In 2015 my father declared his marital status to the Department of Veteran's Affairs as "widowed", not as "living in a marriage-like relationship".
  • My father deliberately did not include the woman in his will and she is not entitled to anything. As his son, I am the executor and beneficiary of the will.
  • I am eligible to make a claim on my partner's property, as we were in a de facto relationship for many years and were still together when he died.
  • We spent a lot of time together on recreational activities such as shopping, going to the movies, going to the beach and eating at restaurants and cafes. We travelled overseas together and went on cruises.
  • I did spend nights in his room, and we did have a sexual relationship.
  • Notes made by his doctor and the hospital refer to me as his "partner" or his "wife" because that's what I was.
  • My partner signed a statutory declaration in 2003 to say we were in a de facto relationship.
  • Our de facto status is confirmed by the fact that many of our bills were in joint names.
  • It's true that in 2015 he declared to the Department of Veteran's Affairs that he was widowed, rather than in a de facto relationship, but he only did that so he wouldn't lose the single rate of the pension.
  • As my partner's dementia progressed he became more and more difficult to live with, hiding my passport, sometimes sabotaging my car or in other ways preventing me from leaving when I had to go to work. Nevertheless, I stuck by him despite these difficulties till the end.
  • Even if our romantic relationship ended before he died, we were still in a close personal relationship and had been a de facto couple for many years.

So, which case won?

Cast your judgment below to find out

Mark Shumsky
Will disputes
Stacks Collins Thompson

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