Ari Katsoulas appeared on behalf of the successful Plaintiff in a family provision claim brought against the estate of her late de facto partner. On 24 August 2023, his honour Justice Nixon of the Supreme Court of NSW delivered judgment ordering provision in favour for the Plaintiff in the sum of $220,000 together with an order for her costs.
The Plaintiff (who by the time of the hearing was a person under legal incapacity) claimed to be the de facto partner of the Deceased, having cohabitated with the Deceased (at a property he solely owned) as a couple since approximately 2004. The Deceased made no provision for the Plaintiff – having died leaving a will that predated the relationship. The Defendant disputed that the Plaintiff was the de facto partner of the Deceased at the date of death, or at all.
In resolving the eligibility dispute his honour considered section 21C of the Interpretation Act 1987 (NSW) and the comments of the Court of Appeal in Sun v Chapman [2022] NSWCA 132. On having been satisfied that the “the overwhelming weight of the evidence… support the conclusion that they had a relationship living as a couple together” his honour was satisfied that the Plaintiff was eligible pursuant to section 57(1)(b) of the Succession Act 2006 (that is, a de facto partner at date of death).
His honour dealt with the difficult task of determining the quantum of provision at [96] – [131]. At [127] his honour concluded:
“In all the circumstances, the order for provision that I think ought to be made out of the deceased’s estate for the maintenance of Eileen, having regard to the facts known to the Court at this time, is an order in the amount of $220,000. In arriving at this figure, I have had regard to, on the one hand, Eileen’s available cash resources and, on the other, the projected future shortfall between income and expenses and the need for a fund for contingencies, and balanced that against the size of the estate (allowing for legal costs), and the circumstances and needs of the beneficiaries under the Will, Sharlene and Bradley.”