Can someone who was in a same sex relationship contest their former partner’s will?
Yes, a person who was in a same sex relationship can contest the will provided they were in a de-facto relationship at the time of their deceased partner’s death or had been previously dependent upon the deceased and a member of the household of which the deceased person was a member.
In Nelligan v Crouch [2007], the claimant had been in a same sex relationship with the deceased, and had been left nothing in the will of their deceased partner. The will had left everything to the Royal Flying Doctor Service.
The two had been in a de-facto relationship of more than 30 years, although they had spent a number of years separated prior to the deceased’s death as a result of the demands of both personal and family illness.
The court recognised that while the two were not living together as de-facto partners at the time of death, and were no longer in a ‘close domestic relationship, the extended period of time they did previously spent together was significant enough to warrant provision.
The court took into consideration that the claimant and the deceased had still maintained a friendly and caring relationship right up until the time of death, despite being separated. The court awarded the claimant provision of $100,000 from an estate that was worth $180,000 after costs, with the remainder passing to the Flying Doctors.
Liability limited by a scheme approved under Professional Standards Legislation