Close Personal Relationship
The Succession Act 2006 provides that a person in a close personal relationship with the deceased person as at the date of death is eligible to commence proceedings to obtain an order for provision from the estate of the deceased person.
It is not sufficient that a person was in a close personal relationship with the deceased at some point in time - the close personal relationship must be in existence as at the date of death.
What does 'Close Personal Relationship' mean?
Close personal relationship is defined in the Act as a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
A close personal relationship for the purposes of the Act is not taken to exist if the person providing the support and care is being paid, or is providing the support and care on behalf of another person or organisation, for instance a charitable organisation.
While the requirement of 'living together' will usually be satisfied if the deceased shared the same house as the person said to be in the close personal relationship, it does not mean that this requirement is not met simply by a temporary absence, for instance following a move into a nursing home, or even separate residences in special circumstances.
The final element required to become eligible as someone who was in a close personal relationship is the requirement to provide domestic support and personal care. This requirement may be satisfied by the performance of tasks such as shopping, cooking and cleaning.
It is common for the category of 'close personal relationship' to be used by a partner of the deceased person who fails to meet the 2 year de facto relationship test.
I was in a Close Personal Relationship with the deceased - what's next?
Proof of a close personal relationship does not automatically enable a Court to make an order for provision. This is so as the person claiming must establish 'Factors Warranting'.
Factors warranting means that there must be circumstances which give the person claiming the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. Whether this is so will depend on all of the circumstances, including the closeness of the relationship and whether the deceased person made prior testamentary statements regarding the person claiming, such as a prior Will.
Is there anything else the Court takes into account?
Once the Court is satisfied that the person challenging the Will or estate was in a close personal relationship with the deceased as at the date of death, and that there are factors warranting the making of an order, the Court can proceed with determining whether the provision made in the Will was inadequate, and if so, whether an order should be made to disturb the Will.
In performing this task the Court has regard to a range of matters including:
any family relationship, including the nature and duration of the relationship.
the nature and value of the estate.
the financial resources and needs of all interested parties.
any physical, intellectual or mental disability of all interested parties.
any contribution made to the estate or welfare of the deceased.
any provision made for you by the deceased before or after death.
whether the you were being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
whether any other person is liable to support you.
All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.
As can be seen a person claiming eligibility based on 'close personal relationship' faces a number of hurdles before they can make a successful challenge to a Will. While a general overview has been provided above there are a number of subtleties for each of the hurdles described above and it is important that you seek advice from the lawyers in the Contested Estates Division because they regularly appear before the Court in these types of applications.
If you believe you were in a close personal relationship with the deceased person and wish to find out whether you have a case to challenge the Will and/or seek provision from the estate, then receive a no obligation assessment of your personal circumstances by an experienced estates lawyer, at no cost, by contacting us or commence our online assessment by clicking here.