Carer or Lover? Who Can Make A Family Provision Claim?

Australia is experiencing an ‘ageing’ population trend. The proportion of people over 65 is increasing. As we age, we need more assistance with our day to day tasks and often times, family members are not available [or sometimes not willing] to provide care.

Carers are often brought in to fill that gap but in NSW, that may lead to a family provision claim under the Succession Act 2006 [NSW] [‘the Act’] by that carer against the estate of the deceased.

Recent decision

The New South Wales Court of Appeal [‘C of A’] [White JA, Leeming JA and Brereton JA] in Sun v Chapman [2022] NSWCA 132 recently awarded a caregiver $550,000 from an estate worth $2,580,100 due to the de facto relationship between the caregiver and the deceased. The C of A also provided some interesting commentary on whether the relationship was also a ‘close personal relationship’ for the purposes of a family provision claim.

Relationship Background
The caregiver Ms Wei [Rose] Sun had entered into an oral contractual relationship in or around July 1998 with the deceased Mr Robin Alan Richard Chapman. She provided domestic services in exchange for free accommodation.

In or around 2 February 2019, Mr Chapman passed away and his last Will and testament was made in 1996, some two years prior to meeting Ms Sun.

Upon Mr Chapman’s death, Ms Sun made a family provision claim under the Act where she claimed that the benefit claimed was necessary for her maintenance and advancement in life, as adequate provision had not been made in his 1996 Will. Ms Sun claimed to have a standing as either being in a de facto relationship or as being in a close personal relationship with the deceased.

Supreme Court Decision
The Supreme Court, at first instance [Emmett AJA] found that due to considerable conflict in the relationship during the final [5] years of Mr Chapman’s life, even if a de facto relationship had existed between Ms Sun and Mr Chapman that relationship had ceased prior to Mr Chapman’s death. Further, even though it was likely that the parties were in a ‘close personal relationship’, the factors did not warrant an order for provision to Ms Sun. Accordingly, Ms Sun was not eligible to make an application under the Act for provision.

Court Of Appeal Decision
Ms Sun appealed the decision. The C of A found evidence on the existence of a romantic relationship citing that the trips, holidays and Ms Sun’s visits to Mr Chapman in hospital suggesting she was not just acting in her capacity as carer. Further, the C of A found that the temporary nature of the separations between Ms Sun and Mr Chapman added with the fights and threats to replace Ms Sun with another carer were never acted on, so it found the consortium vitae (partnership for life) had not been severed and the de facto relationship had continued until his death.

On the basis of the de facto relationship, Ms Sun’s appeal was successful and Mr Chapman’s estate was ordered to pay her a sum of $550,000.

C of A also found that Ms Sun’s ‘close personal relationship’ with Ms Chapman would have made her an eligible person if the C of A had not found that the de facto relationship had continued. The care she provided and her dependence on Mr Chapman for accommodation meant she should be regarded as a ‘natural object of the deceased’s testamentary intentions’.

Ms Sun’s substantial contributions to his welfare gave a moral claim that outweighed other beneficiaries, who had little connection to Mr Chapman and who made minimal contributions to his welfare.

What Does This Mean?
This means, in real terms, that a carer, without having been included in a Will, may now be able to claim from a deceased’s estate, to the detriment of the other beneficiaries, where there is evidence to support a ‘close personal relationship’ with the deceased.

Therefore, when planning the succession and estate of your clients, it is crucial to ensure that Wills are updated as soon as there is a change in circumstance and that consideration be given to all people who may have a claim upon an estate, including carers.

Factors that may allow a person to make a claim upon an estate include, amongst other things:

• Does the carer live with their patient? If so, what is the tenure of that co-habitation? In Sun v Chapman, Ms Sun’s claim was stronger because of the twenty [20] years they cohabited.

• Does the carer contribute to their patient’s welfare? These contributions can be financial or non-financial but must have helped conserve and improve the estate of their patient. For example, does the carer actively contribute financially to payment of bills, do they regularly help with daily tasks, etc.

• Is there an intimate relationship? The primary focus should surround the length of any intimate relationships, whether there are regular trips and holidays together, and more broadly any acts which are suggestive of more than just a carer-patient relationship.

• Does the carer receive payment for their care of their patient? If the carer does not receive payment, the ‘moral’ obligation owed by the patient to their carer increases.

• Is the person’s Will up to date? In Sun v Chapman, the deceased’s last Will was executed in 1996 and did not reflect the deceased’s circumstances at the time of his death. The C of A was of the view that Ms Sun ought to have regarded as a natural object of the deceased’s testamentary intentions which warranted provision in her favour from the deceased’s estate.

Sun v Chapman reminds us of the importance of estate planning and asking those often personal questions to better plan the estate, avoid confusion and lessen the risk of successful claims on the estate after death and protect the beneficiaries of the estate.

RN LEGAL has assisted many clients with the delicate task of creating and updating wills and on many occasions has acted for clients when a will they are beneficiary to has been contested. RN LEGAL has the experience, expertise and resources to help you write and safeguard your will.

Don’t leave the distribution of your estate and your family’s future to chance. Contact us on (02) 9191 9293 or if you require legal advice in relation to your will or estate matter.