Unsuccessful family provision claim by domestic partner in small estate

Wills and Estates: 23 March 2019

Semmler v Todd [2015] VSC 567

In the recent decision of the Victorian Supreme Court in Semmler v Todd, a Will Dispute brought by a domestic partner of the deceased was dismissed.

The deceased had died leaving a small estate valued at $484,711.30 in the Inventory of Assets and Liabilities, which had been reduced to $367,936.17 by the date of the trial due to legal fees.

The Plaintiff submitted that she had been in a domestic relationship with the deceased for 21 years until his death, although they did not live together for all of that time. The Defendant argued that the relationship was "on and offand at the time of death, the Plaintiff was an "ex-girlfriend€, as she had not lived with the deceased for the four years prior to his death. 

The Plaintiff and the deceased had lived together from 1992 until 2010, although there was a period from 1998 to 2000 when they did not live together, following an incident where the deceased assaulted the plaintiff's daughter. During their relationship they purchased a property in joint names together, and had a child together. In March 2010 the deceased assaulted their son, after which the Plaintiff did not live with him again, although her evidence was that their relationship continued until his death, and she would visit him at the residence he shared with his former wife.

The Court found that although the relationship between the deceased and the Plaintiff did not have the hallmarks of a de facto relationship at the date of the deceased's death, the relationship still had the character of a loving and close relationship, and was more than just a "boyfriend/girlfriendrelationship. The key reason for them living apart was due to the deceased's assault of their son. Therefore the relationship was found to be one which gave rise to a moral obligation to provide for the Plaintiff.

However, the Plaintiff's claim was dismissed as she could not demonstrate any significant financial need when compared with the beneficiaries. The plaintiff had an income of $90,000 per annum and owned a property worth $350,000, albeit encumbered by a large mortgage of $257,000. She had superannuation of $106,000 to $108,000. In contrast, the deceased's children all had significant financial needs and/or health problems.

Therefore the Court concluded that an order for provision for the Plaintiff was not justified having regard to the small size of the estate and the significant needs of the beneficiaries.

This case demonstrates that a good moral claim for provision from an estate is not enough to succeed in a family provision claim. Important factors are the financial positions of the plaintiff compared with the beneficiaries, and the size of the estate. Care should be taken when making a claim against a small estate, because the cases show that the smaller the estate, the more difficult it is for a Plaintiff to succeed in a Will Dispute.