What is considered a close personal relationship when defining the estate of a Will? How is it different to a married or de facto relationship?
What a great question. It can be very confusing trying to determine who is eligible to challenge a Will because they had a “close personal relationship” with the deceased.
Under the Succession Act, only people who are included in the list of “eligible persons” are able to challenge the Will.
As you point out eligible persons includes spouses and de facto partners. It also includes children of the deceased and grandchildren of the deceased, as long as they were wholly or partly dependent on the deceased.
Another category of eligible persons are those who were living in a close personal relationship with the deceased at the time of their death. A close personal relationship is defined as a relationship between 2 adults, whether or not they are related, who are living together and provide domestic support and personal care.
Spouses and de facto partners are not included in a close personal relationship and neither are two people where one of them provides the other, with domestic support and personal care for a fee, or reward, or on behalf of another person, or an organisation (such as a government organisation or a charity).
In a recent decision of the New South Wales Supreme Court, Thompson v The Public Trustee of New South Wales, the Court considered previous decisions that had looked at the difference between a marriage or de facto relationship and a Close Personal Relationship.
The Court noted that one the main differences is that the concept of “living together” will always be something different in a close personal relationship than from living together as a couple. (which is a requirement to show a de facto relationship).
The intent of including people in “close personal relationships” as eligible persons able to challenge a Will, was to cover persons living in intimate relationships that would not meet the criteria for de facto relationships or marriage. For instance the definition of a close personal relationship does not require the parties to live together full-time. This is unlike a de facto relationship, which require the parties to live together full-time as a couple.
If you believe you are, or have been, in a close personal relationship you need to be aware that you are entitled to challenge the Will of the other party in the event of their death. This challenge is based on whether the deceased made adequate provision for your proper maintenance, education and advancement in life.
If this sounds like the type of situation you find yourself in, you should seek expert legal advice on your rights to challenge the deceased’s Will as an eligible person.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on whether you were in a close personal relationship and are eligible to Challenge a Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today.
For an appointment close to home call; 9221 0341.
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