Case study: Gay partner awarded larger share of deceased partner’s estate

Adelaide lawyer Mal Byrne analyses a recent South Australian Supreme Court case where a man challenged the Will of his late partner. 

The recent Supreme Court of South Australia decision of Brennan and Mansfield [2013] SA SC83 is a benchmark decision on what constitutes “adequate provision” for the “proper maintenance, education or advancement in life” when assessing a claim under Section 7 of the Inheritance (Family Provision) Act 1972 (SA) by a gay domestic partner against the Will of his or her deceased partner and by spouses and partners generally. 

The plaintiff partner challenging his late partner’s Will was a 54 year old primary school teacher employed by the Department for Education and Child Development.  The deceased was 36 years older than the plaintiff.  The couple met in 1984 when the plaintiff was 26 and the deceased was 62.  They moved in together in 1989.  The net estate was approximately $3.5 million.  The deceased owned a property at St George’s valued at approximately $1 million.  The plaintiff also had a 1/3^rd share in the couples other property at Stirling also valued at around $1 million.  The couple lived in the St George’s property during the week and in the Stirling property on weekends.   The couple lived what the presiding judge described as a “luxurious” lifestyle.  The couple had a mutual interest in antiques, travel, music, and entertaining.  They would regularly host large parties.  They dined out regularly.  The deceased gave the plaintiff extravagant gifts such as paintings and artefacts and paid for the couple’s many overseas trips. 

When the deceased became ill, the plaintiff cared for him and continued to care for him at home until his death.  The deceased would have been admitted to a nursing home if the plaintiff had not cared for him in his final years.  The couple had a sexual relationship for years until the deceased’s health began to decline. 

The plaintiff was not financially dependant upon the deceased but enjoyed a lifestyle funded by the deceased which he could not have supported himself.  Neither the plaintiff nor deceased had any children. 

In his Will, the deceased had left his interest in the Stirling property to the plaintiff plus $100,000.00.  The balance of the estate totalling $2.5 million was left to Prince Alfred College, the defendant to the claim.  The deceased was a past pupil and maintained an interest in the school. 

In order to challenge the deceased Will, the plaintiff first had to establish that he was the deceased’s domestic partner under the Family Relationships Act.  The defendant did not contest that the plaintiff was the deceased’s domestic partner.  Hence, the only issue before the judge was whether the court should make an order pursuant to Section 7 adjusting the distribution of the estate of the deceased for the maintenance, education advancement of the plaintiff on the basis that the plaintiff had been left without adequate provision for his proper maintenance, education or advancement in life by the deceased in his Will. 

The Judge stated that Section 7 demands the court to carry out a two stage process.  The first stage was that the court had to decide whether the plaintiff had been left without adequate provision for his proper maintenance, education and advancement in life.  The second stage (which only applies if the court does decide that the plaintiff has not been left without a provision) is for the court to decide what provision is to be made out of the deceased’s estate for the plaintiff. 

In relation to the question of whether the deceased had failed to make adequate provision for the proper maintenance of the plaintiff, the judge stated that consideration had to be given to the meaning of the words “adequate” and “proper”.   The Judge stated that these were relative terms and that all the circumstances of the case had to be taken into account. The Judge pointed out that there were “community standards” and that the court must “form opinions and make value judgments upon the basis of its own general knowledge of social conditions and standards”. 

The plaintiff accepted that the provision that the deceased had left him from the estate was adequate to meet his financial needs.  That was not his argument.  He said that he had a moral claim to a greater share of the deceased’s estate.  The Judge referred to the decision of Re Allen (deceased) which stated that “the provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it is his moral duty to make in the interest of his widow and children had he been fully aware of the all relevant circumstance”.  The Judge pointed out that the principle was equally applicable to the obligation of a testator to his domestic partner. 

In assessing the moral claim of the plaintiff, the Judge stated that the court had to take into account any competing claim.  However, as the defendant was a school and not a spouse or close relative, there was no competing moral claim.  However, while the school did not have a moral claim, the Judge pointed out that any special interest that the deceased had in the school should be considered.  Evidence was given that the deceased had played sport for the Old Scholars as a younger man and had made modest donations to the school in the last five years of his life.  His treating General Practitioner was an old scholar and he subscribed to the school’s quarterly magazine.  He had also made the school a residual beneficiary in three earlier Wills.  None of this was enough for the school to establish a moral claim, but the Judge was satisfied that it did establish that the deceased had a genuine interest in the school and wanted to make substantial provision to it from his estate.  The Judge also found that the deceased’s intention regarding the school was sincere and that he was not setting out to deprive the plaintiff of his proper share. 

In terms of percentage share, the deceased had left the school approximately 70% of his estate and the plaintiff had received less than one quarter.  Ultimately, the Judge found that the deceased had not made adequate provision for the plaintiff for the following reasons: 

1.             As the estate was substantial, the plaintiff was entitled to expect a higher degree of financial freedom from anxiety than the average person even to the point where the provision and lifestyle by society’s standards might be considered extravagant.  In summary, it is not just a question of whether the plaintiff’s financial needs are met but that the lifestyle enjoyed by the plaintiff prior to the death of the deceased should be maintained to as close a standard as reasonable and possible. 

2.             The plaintiff had a strong moral claim on the basis of the strength and length of his relationship with the deceased.  The plaintiff invested heavily in the couple’s domestic relationship doing most of the cooking and cleaning and organising much of their social life.  In particular, the plaintiff took time off from his work to care for the deceased when he became infirmed to the point that the deceased was able to remain living at home until his death. 

3.             It was not unreasonable in the circumstances for the plaintiff to expect that the deceased would have made him a sole beneficiary of his estate.  There was evidence that the deceased had led the plaintiff to believe that this would be the case. 

In the end, the Judge felt that the provision made for the plaintiff in his Will by the deceased was inadequate to allow him to “enjoy anything approximating the lifestyle they enjoyed together over the duration of their 26 year relationship”.  In particular, the $100,000.00 left to the plaintiff was not sufficient for him to maintain the Stirling property.  The bequest also did not take into account contingencies such as if the plaintiff fell ill and could not work.  It was not the case that the plaintiff should expect provision to enable him to live the exact standard of luxury prior to the deceased death, but something that amounted to “a reasonable approximation of comfortable affluence” that was his moral right by reason of his long close relationship with the deceased. 

Having decided this, the Judge turned his mind to what provision should be made from the estate.  He was not prepared to give the plaintiff both properties which would in effect be rewriting the deceased’s Will.  All the court had to do is make an order that provided the plaintiff with adequate provision.  The Judge decided that the figure of $100,000.00 should be increased to $1 million.  He calculated this on the basis that the plaintiff would need $4,000.00 a month to maintain the Stirling property or $923.00 a week.  Using an actuarial multiplier of 898 for a 54 year old male to death and multiplying that figure by $923.00 a week, this produced an answer of $828,850.00.  The Judge then allowed a further $150,000.00 for contingencies which produced a figure of just $980,000.00 which he then rounded up to $1 million. 

The decision is significant in that the court stated that adequate provision goes beyond consideration of whether the plaintiff’s basic financial needs are met.  It is a question of whether the plaintiff has been provided with a sufficient portion of the estate to allow him to live a lifestyle not necessarily as luxurious or the equivalent as when he lived with the deceased, but something approximating that lifestyle.  In this case, that required the plaintiff to be left with sufficient funds to enable him to maintain the property that he was bequeathed by the deceased.  However, the plaintiff was not entitled to expect to live the fully equivalent lifestyle that he lived with the deceased.  To provide for the plaintiff to that extent would be rewriting the deceased’s Will and going beyond the limitations of Section 7 of the Act.

For advice, contact Mal on (08) 8250 6668.

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.