Contact Us

    How many anniversaries do you need to have until you have a claim on your de facto partner's estate?

    Apr 2, 2019 4:16:54 PM

    In the matter of the Estate of Hawkins; Huxtable v Hawkins [2018] NSW SC 174, Mr Justice Lindsay was asked to consider whether the Plaintiff could successfully bring a claim against the estate of her de facto partner when the relationship was of only 3 years standing.

    This raises some interesting questions, namely:

    1. Can de factos bring a claim against the estate of their partner?
    2. Is a relationship of three years sufficient to justify the new claim?

    In reaching his decision, the court considered the meaning of a de facto. This aspect of this decision will be considered in a separate article.

    The essential issues for determination by the Court were:

    1. Whether the Plaintiff could establish that she was an “eligible person” within the meaning of Section 57(1)(b) of the Succession Act;
    2. Whether she has been left without adequate provision for the proper maintenance on the education or advancement in life out of the estate or notional estate of the deceased; and
    3. Whether she could persuade the Court in the context of the legislation that there “ought” to be an order for provision to be made for her maintenance, education or advancement in life out of the estate of the notional estate.

    The relevant facts for the purpose of this article are:

    • The Plaintiff Victoria Huxtable applied to the Court for a grant of family provision relief in the estate of the late David Michael Hawkins. He died on 19 August 2015 and was aged 54 years.
    • Huxtable and Hawkins first met in August 2012.
    • Hawkins was a Qantas pilot by profession and a hobby farmer. His lifestyle was structured around his job as a Qantas pilot, operating at a senior level of responsibility.
    • She had received property from her former husband in the matrimonial settlement and looked to him for assistance with expenses associated with the maintenance of the children. She was the primary carer of the children, with life style costs being met in large measure by substantial loans made to her by her parents and by income earned from part time work as a teacher.
    • Huxtable throughout the time of her relationship with Hawkins worked part time but, a day he died, she gave up her job; and she subsequently experienced difficulty in obtaining suitable employment.
    • Hawkins was married only once to a woman named Katrina. They separated in late 2011.
    • There were three adult children from that marriage.
    • Hawkins left a Will dated 13 May 2013 and probate was granted to his eldest child Harry on 8 April 2016.
    • The “pool of assets” available to satisfy a claim for family provision relief was estimated by the Defendant to be worth approximately $1,413,987. There was no real dispute between the parties about the size of the deceased’s estate.
    • Hawkin’s children had access to the superannuation of $748,093.
    • There was argument between the parties as to whether Huxtable and Hawkins were “living together.” This argument arose out of:
    • “The peripatetic life lived by the deceased as an airline pilot and the constraints affecting the Plaintiff (as a single mother of young children of her own), each impacting upon the time available for personal contact; and
    • The proximity of the deceased’s marriage breakdown to his new relationship, with the Plaintiff, involving adjustments to lifestyles and family expectations.”

    The Barrister for the Estate contended:

    • The relationship between Huxtable and Hawkins was relatively short, with intermittent personal contact;
    • That the deceased’s primary obligations were to his own children and that apparently there was an agreement between Huxtable and Hawkins that the deceased was not liable to provide financial assistance to Huxtable’s children.
    • That the estate was relatively small.
    • Apparently Hawkins did provide some day to day support for Huxtable in cash and kind.

    The Court held that she was an eligible person who had been left without adequate provision for her proper maintenance, education or advancement in life from the estate.

    The Court granted a legacy of $75,000 upon taking into account:

    • The nature and duration of the personal relationship;
    • Decisions by Huxtable in her purchase of a house at Killara in anticipation of a long term relationship with the deceased and her substitution of that house with a house at Thornleigh after the death of Hawkins;
    • Huxtable’s disappointed expectations and unemployment in the wake of the deceased’s unanticipated death;
    • The close relationship between Hawkins and his children;
    • The personal circumstances of Huxtable, being a young mother, without assets, with debts and limited income opportunities;
    • The primary impediment to Huxtable’s claim is the entitlement of the deceased’s children to be provided for by their father.

    Having regard to the particular facts of this matter and their application to the legal principles the

    essential issues for determination by the Court were decided this way:

    1. Whether the Plaintiff could establish that she was an “eligible person” within the meaning of Section 57(1)(b) of the Succession Act: Yes, she did establish that she was an eligible person.
    2. Whether she has been left without adequate provision for the proper maintenance on the education or advancement in life out of the estate or notional estate of the deceased: The Court concluded that she was not adequately provided for.
    3. Whether she could persuade the Court in the context of the legislation that there “ought” to be an order for provision to be made for her maintenance, education or advancement in life out of the estate of the notional estate: The Court decided that the Plaintiff ought be granted a legacy of $75,000 for her maintenance, education or advancement: The Court ordered that the estate pay the Plaintiff’s costs on the ordinary basis.

    This is not legal advice. 

    Photo by Pablo Heimplatz on Unsplash

    Andrew Frank

    Written by Andrew Frank