Challenge a Will NSW
Contested Estates Division
Free consultation: 1800 529 529

De Facto

A de facto spouse as at the date of death of the deceased person is an Eligible Person for the purposes of the Succession Act 2006. This eligibility does not mean that a claim will be successful, but enables the de facto spouse to bring the claim in the first instance.

The definition of a de facto spouse is contained in the Property (Relationships) Act 1984 and is as follows:

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

The Act further states that in determining whether the two persons are in a de facto relationship all of the circumstances of the relationship are taken into account, including the following, if relevant:

  •   the duration of the relationship,

  •   the nature and extent of common residence,

  •   whether or not a sexual relationship exists,

  •   the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

  •   the ownership, use and acquisition of property,

  •   the degree of mutual commitment to a shared life,

  •   the care and support of children,

  •   the performance of household duties,

  •   the reputation and public aspects of the relationship.

Provided they are not related, it can be seen that the only question is whether the two adult persons are living together as a couple.

It should be noted that 'living together as a couple' does not mean 'living together in the same house' and the nature and extent of a common property is but one factor to be taken into account.

In circumstances where the deceased person died without leaving a Will the duration of the relationship is particularly important, as a de facto spouse assumes special status as a 'Domestic Partnership' if in existence for a continuous period of 2 years as at the date of death.


I am the de facto spouse - will I be successful?

Once the Court is satisfied that the person challenging the Will or estate was the de facto spouse as at the date of death, 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 terms of the Will.

In doing so 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.
  • the de facto's age.
  • any contribution made to the estate or welfare of the deceased.
  • any provision made for the de facto by the deceased before or after death.
  • whether the de facto was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
  • whether any other person is liable to support the de facto.

All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.

While a general overview has been provided above there are a number of subtleties in this area of law 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 have ever been a member of the household of a 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.

Take the next step

Online Assessment

Fees & Costs

A lawyer from our contested estates division will contact you for your free consultation