Same sex Will dispute

Wills and Estates: 23 March 2019

The Victorian Supreme Court is currently overseeing what appears to be the first same sex Will dispute in Victoria. The trial continues in front of Associate Justice Lansdowne where Juanito Estrella is seeking provision out of the estate of his alleged partner Leon Wesley George Robins.

Mr Robins died in 2008 leaving an estate worth approximately $2.7 million to his children. Despite Mr Estrella's claims that he and Mr Robins were in a committed de facto relationship for some 30 years, Mr Robins left nothing to Mr Estrella in his Will.

The matter is being brought by Mr Estrella under Part IV of the Administration and Probate Act which enables the court to order that provision be made out of a deceased person's estate for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. Importantly for Mr Estrella, the Act no longer requires the applicant to be related to the deceased by marriage or blood in order to make a claim for further provision.

Whilst this may be the first Part IV claim relating to a same sex relationship, Justice Harper in Schmidt v Watkins(one of the first cases in Victoria to deal with a claim under the amended legislation) made it clear that the gender of each partner was irrelevant to the finding of whether the deceased had a responsibility to provide for their partner.

Mr Robins' children have submitted that Mr Estrella was a boarder at their father's home, and that they were unaware they were lovers. However, whether the pair were in fact lovers or not may not be a critical factor in the decision of the case.

A recent decision handed down by Associate Justice Gardiner on 15 April 2011 (Allen v Huntley) is likely to assist Mr Estrella's claim. In that case, the applicant agreed that she was not in a sexual relationship with the deceased and that they maintained separate bank accounts. Nevertheless, she submitted that they were in all other ways like a couple. They shared meals together, attended all significant occasions such as Christmas, birthdays and weddings together and eventually when the deceased was diagnosed with Alzheimer's she became his sole carer.  The court agreed with the applicant and determined that the deceased did have a responsibility to provide for her and that the provision in his Will was insufficient.

Applying that case, it may be that Mr Estrella need only convince the court that he and Mr Robins were in a caring relationship and dependant on each other for financial and emotional support to succeed in his claim, even if the court is not convinced that they were in a sexual or de facto relationship. The question will come down to whether their relationship was such that Mr Robins had a responsibility to provide for Mr Estrella.

We await Associate Justice Lansdowne's decision.