The recently reported judgment in the Supreme Court of NSW, Estate Hawkins; Huxtable v Hawkins [2018] NSWSC 174 was a matter involving a family provision claim brought by a person (‘the plaintiff’) claiming that she had received inadequate provision from her deceased partner’s estate. The brief facts of the matter are that the deceased died in August 2015, aged 54 years. He had separated from his wife in late 2011 and was survived by 3 children. His children were aged between 20 and 23 as at the date of his death. After his separation, the deceased made a new will in May 2013. His estate and notional estate combined was worth around $1.5 million after debts were paid. This figure included the superannuation funds which were paid to the children (as those funds were potentially notional estate). A significant amount of time and evidence was directed to proving or disproving whether the deceased and the plaintiff were ‘living together’ and were a de facto couple. Legal costs of nearly $300,000 combined were incurred in the proceedings as the children disputed that the plaintiff was an eligible person to make a claim against the estate. In order to be considered eligible, the plaintiff needed to satisfy the requirement that she was a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”. The plaintiff and the deceased first met in August 2012 through mutual friends. They began a relationship not long after they met. The deceased was an airline pilot which meant he traveled a lot. The plaintiff was a recently divorced mother of 3 children. This meant they each had demands on their time which limited the opportunity for personal contact. The Court observed: “… [T]he central issues for determination by the Court are: First, whether the plaintiff can establish that she is an “eligible person” within the meaning of section 57(1)(b) of the Succession Act; secondly, whether (as required by section 59(1)(c) of the Succession Act) she has been left without adequate provision for her proper maintenance, education or advancement in life out of the estate or notional estate of the deceased; and, thirdly, whether she can persuade the Court, in the context of section 59(2) of the Act, that there “ought” to be an order for provision to be made for her maintenance, education or advancement in life out of the estate or notional estate.” Evidence and arguments put by the defendant executor of the estate included that:

  • the plaintiff and deceased only had a short relationship with limited contact;
  • the deceased’s primary obligations were to leave his estate to his own children;
  • an agreement or understanding existed between the plaintiff and the deceased that the deceased would not be liable to provide financial assistance to the plaintiff’s children;
  • after adequate provision was made for the deceased’s children, the estate was not going to be large;
  • the plaintiff had financial resources of her own, and the support of her own parents, and as such she should not claim against the deceased’s children’s interests in the estate;
  • the last will was made after the deceased first met the plaintiff.

Evidence was also put before the Court that the plaintiff had provided financial assistance to the deceased, that the deceased had paid for the plaintiff’s holidays, gardening and babysitting costs, and also contributed to her other living expenses. The Judge found: “Taking into account the nature and duration of the personal relationship between the plaintiff and the deceased; decisions made by the plaintiff in her purchase of a house at Killara in anticipation of a long-term relationship with the deceased and her substitution of it with a house at Thornleigh after the death of the deceased; her profoundly disappointed expectations, and unemployment, in the wake of the deceased’s unanticipated death; the close personal relationships between the deceased and his children, relationships of profound importance to him; and the personal circumstances generally of the plaintiff (a single mother of three young children, approaching middle age, not without assets but with debts and limited income and opportunities) and each of the deceased’s children (young adults starting out in life with limited resources) I find, upon an exercise of the discretion for which section 59(2) of the Succession Act provides, that the plaintiff ought to be granted a legacy of $75,000 for her maintenance, education or advancement in life.” The plaintiff’s legal costs were ordered to be paid by the estate in addition to the legacy of $75,000.