The Facts
Man executes will in favour of relatives and former spouse
On 8 August 2000, a man executed a will naming his younger brother as his executor. The will left certain items of personal property to his two brothers, his nephews and his niece.
He left the rest of his estate to a woman identified in the will as his spouse. Though they had never married, they had lived in a de facto relationship since 1993 and continued to do so until 2007.
In July 2007, the man met another woman, the plaintiff, when she applied to volunteer at the youth centre where he worked. At the time he was 61 years old and she was 32. In about 2008, they embarked on a romantic relationship.
No provision made for plaintiff in man’s will
On 13 December 2015 the man died.
The brother who was the executor was granted probate, authorising him to manage the man’s estate in accordance with the provisions of the will that he had executed in 2000.
The value of the estate available for distribution under the will was about $582,573.
The will made no provision for the plaintiff.
Plaintiff seeks family provision order in relation to man’s estate
The plaintiff filed a summons in the Supreme Court of NSW, seeking a family provision order, arguing that she was eligible as either the deceased’s de facto partner at the time of his death, or as a member of his household and dependent on him.
The deceased’s brother, as the executor of the deceased’s estate, was the defendant in these proceedings.
Although it was not in dispute that there had been a relationship between the plaintiff and the deceased, the precise nature, extent, and duration of that relationship was a hotly contested issue in the court proceedings.
Expert commentary on the court's decision
Supreme Court dismisses plaintiff’s case
On 28 February 2018, the Supreme Court of NSW in the matter of Bezjak v Wyatt [2018] NSWSC 199 dismissed the application of the plaintiff, Ms Brigita Bezjak, for a family provision order.
The court rejected Ms Bezjak’s argument that she was the de facto partner of the deceased, Mr Peter Wyatt, at the time of his death.
The court accepted Ms Bezjak’s alternative argument that she and Mr Wyatt were members of the same household for a period of time and that she was partly dependent on him. However, the court concluded that this alone did not entitle her to make an application for a family provision order.
Court must have jurisdiction under Succession Act to make family provision order
Section 59(1) of the NSW Succession Act 2006 (“the Act”) confers jurisdiction on the court to make a family provision order in relation to the estate of a deceased person.
To make a family provision order, the court must be satisfied that the plaintiff is an eligible person and that adequate provision for the proper maintenance, education or advancement in the life of the plaintiff has not been made by the will of the deceased.
For some classes of eligible persons, the court must also be satisfied that having regard to all the circumstances of the case, there are factors which warrant the making of the application.
Eligible person who is living in de facto relationship with deceased at time of his death
Under section 57(1)(b) of the Act, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person‘s death is an eligible person.
In relation to a de facto relationship, there is no need for the court to also satisfy itself that there are factors which warrant the making of the application.
Eligible person who is a member of deceased’s household and dependent on deceased
Under section 57(1)(e) of the Act, a person is also an eligible person if they were at any time wholly or partly dependent on the deceased person and at that time or at any other time, were a member of the household of which the deceased person was a member.
However, unlike with a de facto relationship, the court must also be satisfied that there are factors which warrant the making of the application.
“Living in a de facto relationship” defined by court
The court noted that for the purposes of section 57(1)(b) of the Act, a de facto relationship is defined by section 21C of the NSW Interpretation Act 1987.
Section 21C of the Interpretation Act states that a person is in a “de facto relationship” with another person if they have a relationship as a couple living together, and they are not married to one another or related by family.
“Relationship as a couple” defined by court
In determining whether two people have a relationship as a couple, all the circumstances of the relationship are to be considered.
Section 21C provides a list of relevant circumstances, including amongst other things, the degree of mutual commitment to a shared life, the nature and extent of common residence and the reputation and public aspects of the relationship.
While the list of relevant circumstances in section 21C is used to assist in determining whether the parties are in “a relationship as a couple”, the list is not decisive or exhaustive. It is necessary to look at the composite picture, rather than isolating individual factors or attributing relative degrees of importance to them.
“Living together” defined by court
The court stated that in determining if two persons are living together, they should consider factors such as whether there was sufficient shared residence, simultaneous physical presence at the residence, the sharing of domestic tasks, deciding household questions together and sharing the burden of maintaining the household.
Evidence of de facto relationship found not to be credible
The court noted that ultimately, the conclusion as to the existence, or otherwise, of a de facto relationship is a question of fact.
The court highlighted that Ms Bezjak bore the onus of proof to establish that she and Mr Wyatt were in a de facto relationship.
Ms Bezjak’s case was based, principally, upon her own testimonial evidence.
In assessing the credibility of Ms Bezjak’s evidence, the court emphasised that evidence of conversations involving a person subsequently deceased need to be carefully scrutinised, especially if no corroborating evidence is provided.
The court also pointed out that where self-interest in giving evidence favourable to one’s own case is obvious, the evidence should be viewed with much caution.
In cases involving events which occurred some time before the litigation, the court also said it prefers to rely upon contemporaneous, or near contemporaneous, documents, over what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation.
Ms Bezjak not in de facto relationship with Mr Wyatt at time of his death
Considering Ms Bezjak’s lack of documentary and other evidence that could have been, but was not provided by her, the court found that Ms Bezjak was not in a de facto relationship with Mr Wyatt at the time of his death.
In the court’s view, the relationship, while “romantic, and perhaps, even loving, prior to 2010, changed, significantly, after that time. It could not be described as a de facto relationship at the date of the deceased’s death.”
Ms Bezjak as member of Mr Wyatt’s household
Although the court did not accept that Ms Bezjak was in a de facto relationship with Mr Wyatt, it did accept her argument that she was an eligible person because she was a member of Mr Wyatt’s household and dependent on him.
In the court’s view: “…it is the characteristics and dimension of the domestic relationship that make it a household. The concept connotes a degree of continuity and permanency of mutual living arrangements.”
The Act does not specify a length of time during which the plaintiff must have been a member of the household of which the deceased was a member.
The court referred to Ms Bezjak’s driver licence that expired in 2010 and listed her address as Mr Wyatt’s address, in concluding that they were members of the same household for a period of time.
Ms Bezjak dependent on Mr Wyatt
In the court’s view, a person would be dependent on the deceased if they would naturally rely upon or look to the deceased, rather than to others, for anything necessary or desirable for their maintenance and support. This includes financial and/or emotional support.
The court concluded that Ms Bezjak was partly dependent on Mr Wyatt and that he provided her with emotional and other support, even after their romantic relationship had ended.
No factors warranting making of application for family provision order
Although Ms Bezjak was an eligible person as a member of Mr Wyatt’s household, the court also had to satisfy itself that there were factors warranting the making of Ms Bezjak’s application for a family provision order.
The court concluded that there were no factors demonstrating a social, domestic, or moral obligation on the deceased to make some provision for Ms Bezjak.
Accordingly, Ms Bezjak’s summons was dismissed.
Credibility of evidence critical to convincing court to grant family provision order
The concept of a de facto relationship is complex and diverse. Ultimately, it is up to the plaintiff to prove that such a relationship existed at the time of the deceased’s death.
In determining whether it has jurisdiction to grant a family provision order, the court sets a high bar for assessing the credibility of the plaintiff’s evidence. Plaintiffs should ensure that they provide plenty of corroborating evidence, including evidence from other witnesses, as well as contemporaneous documents.