Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520

The deceased died without a Will, leaving a daughter and a partner to whom he was not married.

The New South Wales Supreme Court was asked to consider:

  • Whether the deceased’s partner satisfied the definition of a de facto spouse.
  • If so, whether the daughter had a claim for provision from the estate.

The deceased’s daughter denied that the partner was a de facto spouse of the deceased, and therefore, she was not entitled to receive any benefit from the estate. If the partner was to benefit from the estate, the deceased’s daughter claimed that she should receive provision on the basis of her considerable needs due to a profound disability.

De facto relationship

The nature of the relationship between the deceased and the partner was an important issue for the Court. Pursuant to the Succession Act 2006 (NSW) a spouse of a deceased (including a de facto spouse) is entitled to receive their personal effects and a legacy of $350,000 from the estate*, which in this case comprised the whole of the estate. At trial the net estate was valued at approximately $155,000 which consisted of real property in which the deceased and his partner had lived. However, after the inclusion of the notional estate, the Court determined the estate to be valued at approximately $325,000 a sum less than the statutory amount entitled to be received by a de facto spouse.

When determining if the partner was a de facto spouse of the deceased the Court considered, amongst other factors:

  • The duration of their relationship.
  • The nature of their common residence.
  • The degree of financial independence.
  • Their reputation and the public aspects of the relationship.
  • Their commitment to a shared life.

In doing so the Court examined their entire history and the respective contributions, both financial and non- financial of the deceased and the partner to the relationship. The Court was satisfied that the partner was a de facto spouse of the deceased and therefore as the estate was less than $350,000, she was entitled to the whole of the estate.

Claim for provision

As a child of the deceased, the daughter was eligible to claim provision from the estate. However, the entire estate was now due to the deceased’s partner.

The Court considered:

  • The relationship between the daughter and the deceased.
  • The size of the deceased’s estate.
  • The financial circumstances of the daughter compared to that of the partner.
  • The health and wellbeing of the daughter.
  • The ability for the daughter to provide for herself.
  • The contributions made by the deceased to the daughter during his lifetime.

The daughter was completely dependent in all areas of her life. The extent of her disability, her required ongoing care and medical treatment she was likely to require in the future meant that she had significant financial needs. The Court determined that by not receiving any benefit she was not adequately provided for and accordingly she was entitled to a share of the estate.

The next question for the Court was the amount that the daughter should receive. In determining that issue, the Court considered the comparative situation of the partner.

As the relationship between the deceased and the partner existed for only two years, the Court held that the needs of the daughter were significantly higher than the needs of the partner. However the partner also demonstrated that she too was dependent on the deceased and that she also required provision from the estate.

The Court awarded the daughter 65% of the estate and notional estate and the partner the remaining 35% which included superannuation benefits which had previously been paid for the benefit of the daughter to her mother.

Comment: This case highlights the numerous factors the Court takes into consideration when assessing whether a partner satisfies the legal definition of a de facto spouse and when an applicant seeks further provision from an estate. There is no specific formula for determining these issues and the Court must assess each case on its own individual facts.

While estate planning is important for all individuals it is crucial that individuals with blended families do not ignore its importance, as has been reflected in this case. Had the deceased prepared a Will, he would have avoided his estate and particularly his loved ones, considerable time and expense.