In order to make a family provision application under section 57 of the Succession Act 2006 (NSW), you must be an eligible person. One avenue to establish your eligibility is by showing that you were in a ‘close personal relationship’ with the deceased at the time of their death. However, what qualifies a relationship as one which is ‘close and personal’ is difficult to discern from the legislation. This article will outline some of the ways this phrase has been interpreted.
Definition in The Succession Act
Pursuant to section 3(3) of the Succession Act 2006 (NSW), a close personal relationship is a relationship (other than a marriage or a de facto relationship) between two adults, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
Therefore, there can be no close personal relationship for the purpose of section 57(1)(f) of the Succession Act 2006 (NSW) where one party is a minor, where the pair are in a de facto partnership or marriage, where the parties are not living together, or where one or both of the parties do not provide the other with domestic support and personal care.
Furthermore, excluded from the ambit of ‘close personal relationship’ by section 3(4) of the Succession Act 2006 (NSW) are relationships where one party provides the other with domestic support for a fee or reward, or on behalf of another person or organisation. Consequently, the relationship of carer and patient cannot be included within the scope of the section.
What Types of Relationship?
Whilst the phrase ‘close personal relationship’ appears to suggest a level of intimacy that is rarely found outside of romantic relationships, the court has repeatedly affirmed that it may cover a wide range of relationships and need not involve a ‘practical union of lives and property’. (Jurd v Public Trustee [2001] NSWSC 632; Harkness v Harkness [2011] NSWSC 1421) Therefore, any relationship which fits the requirements of being between two adults, who are living together where one or both provide the other with domestic support, will fall within the ambit of section 57(1)(f) of the Succession Act 2006 (NSW).
Living Together
Whilst the Succession Act 2006 (NSW) requires that the parties live together, in Hayes v Marquis [2008] NSWCA 10, this requirement was interpreted as not requiring full time cohabitation and ‘sufficient shared residence’ was deemed satisfactory. Furthermore, there is no requirement that the parties live together in a single residence (Popescu v Borun [2011] NSWSC 1532; Bayssari v Bazouni [2014] NSWSC 910) and the parties can still be deemed as ‘living together’ if they have more than one home which they separately occupy from time to time (Amprimo v Wynn [2015] NSWCA 286). Indeed, the concept of living together was said in Hayes v Marquis [2008] NSWCA 1 to evoke a dimension which centres around the quality of the relationship rather than mere physical proximity. However, there is not any constraint that the parties live together as a couple, and the court is conscious of ensuring the definition of living together is adaptable to the reality of modern domestic life. (Hayes v Marquis [2008] NSWCA 10).
Domestic Support and Personal Care
The requirement that one or each party provides the other with domestic support and personal care is cumulative rather than alternative. There are many acts which are encompassed by this phrase such as shopping, preparing and serving meals, assistance with household tasks, assistance administering medication, financial support, furnishing the property, etc. Given the widespread variety of what may be validly deemed domestic support and personal care, what is more important than the type of support is what was called the ‘dominant causative factor(s)’ for the support and care in DNF v NTS [2017] NSWSC 482. The central question to be asked is whether the primary cause for the care and support is founded in the parties’ personal relationship, or in the prospect or fact of material gain. If it is the latter, then the exclusions in section 3(4) of the Succession Act 2006 (NSW) will apply.
At the Time of The Testator’s Death
The requirement that the two parties be in a close personal relationship at the time of the testator’s death further constrains the ambit of the section. It is, therefore, immaterial if the parties were in a close personal relationship at some time before the time of the death of the deceased for the purpose of section 57(1)(f) of the Succession Act 2006 (NSW).
If you believe you have not been sufficiently provided for in the will of your loved one, and you may have been in a close personal relationship with them at the time of their passing, you may have grounds to bring a family provision application. At Dormers, we can advise and assist you with this process.
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