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I was in a secret relationship with the deceased and should inherit under his will. Which case won? – Wills/ Intestacy/ Estate Planning

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The Facts

Deceased leaves $6 million estate to nieces

G died on 13 August 2013 from a heart attack at the age of

He had owned a pharmacy in Sydney and had no wife or

His closest relatives were his two nieces, C and A.

After her uncle died, C found a two-page document in a Bible on
his bedside table. It was signed, dated, and looked to be an
informal will.

The will appointed C as executor and divided G’s $6 million
estate equally between C and A.

Y challenges will on basis of secret relationship with

Y, a man who was 30 years younger than G, claimed to have had a
secret same-sex relationship with G for 14 years prior to G’s

Y commenced proceedings in the Supreme Court of NSW to challenge
the will.

These proceedings were complex and extended for several

Y made a number of claims, one of which was a family provision
claim under the NSW Succession Act 2006.

The primary judge dismissed this claim on the basis that Y was
not eligible to commence a claim for a family provision order.

Y appealed to the NSW Court of Appeal, and C defended the
proceedings as the executor of G’s will.

case a – The case for Y

case b – The case for C, the executor

  • I satisfy three categories of legal eligibility to make a claim
    against the will. First, I was living with G in a de facto
    relationship at the time of his death. Secondly, I was partly
    dependent on G and was a member of his household. Thirdly, I was
    living with G in a “close personal relationship” at the
    time of his death.

  • I had a secret romantic relationship with G, which took place
    exclusively at G’s pharmacy, for a period of 14 years.

  • We met in 1999 and for the first two years spent about three or
    four days per week together, for about three to five hours on each
    occasion. By 2001, we commenced a sexual relationship, conducted
    entirely in secret and exclusively at the pharmacy, because G spent
    most of his life at the pharmacy.

  • We lived our secret life in the pharmacy’s backroom
    dispensary. There we lived together and would cook and eat
    together, watch television together and have sex. I also helped G
    do the pharmacy books and stock the shelves.

  • Witnesses have confirmed that G routinely socialised at the
    pharmacy, and cooked, ate and slept there, and that I was a regular
    visitor to the pharmacy and would stay there until the early hours
    of the morning.

  • G also provided business advice to me with respect to
    purchasing a tyre business and he provided me with financial
    support to make the purchase. He also gave me the login details to
    his personal bank accounts, so that I could access money whenever I
    needed it, which I routinely did.

  • Since the facts show that I was living with G as a couple and
    that I was dependent on him, I am eligible to make a claim against
    his will, and the court must grant my appeal.

  • Y does not satisfy the criteria for eligibility to challenge my
    uncle’s will.

  • Y and my uncle never had a romantic relationship, nor did they
    live together. There was no privacy at the pharmacy, so how exactly
    could a “secret” relationship take place for 14 years
    without anybody noticing?

  • My uncle never displayed any interest in sexual activities with
    other males. He had long-term sexual relationships with women, whom
    he spoke about regularly to me, my sister and to his friends.

  • Y and my uncle did not meet in 1999 as Y asserts. They met in
    2007 through Y’s wife at the time. Between 2007 and my
    uncle’s death, Y and my uncle had a friendship or a commercial
    relationship, but nothing closer.

  • The funds that my uncle provided to Y were loans, not gifts. My
    uncle always intended that these loans would be repaid. My uncle
    had conversations with third parties where he indicated the
    payments were loans. Also, Y commenced a pattern of regular
    repayments, commencing shortly before my uncle’s death.

  • Further, my uncle did not live at the pharmacy. He had a
    residence in Strathfield where he lived. He may have stayed at the
    pharmacy on occasion, but this only involved him putting his head
    on the desk for a few hours. There isn’t even a bed or shower
    at the pharmacy.

  • Since the facts show that my uncle and Y were not living
    together and that Y was not dependent on him, the court must
    dismiss Y’s appeal.

Cast your judgment below to find

Tierah Faulder

Will disputes

Stacks Law Firm

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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