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) (Act) by that carer against the estate of the deceased.
Recent decision
Summary
The NSW Supreme Court of Appeal (CoA) 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 CoA also provided some interesting commentary on whether the relationship was also a ‘close personal relationship’ for the purposes of a family provision claim.[1]
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 provisions had not been made in his 1996 Will.[2] 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 Court, at first instance, 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 CoA 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 CoA 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.
It was also found that Ms Sun’s ‘close personal relationship’ with Ms Chapman would have made her an eligible person if the CoA had not found that the de facto relationship had continued.[3] 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’.[4]
Ms Sun’s substantial contributions to his welfare gave her 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 you give consideration 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 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.[5] 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 CoA 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 better to plan the estate, avoid confusion and lessen risk of successful claims on the estate after death and protect the beneficiaries of the estate.
Can we help?
Feel free to contact Kerry Sidaway to discuss how we may assist.
This article was written by Kerry Sidaway and Harry Eaton.
Eakin McCaffery Cox communications are prepared to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. If you or a friend or colleague need advice in relation to a Family Provision Claim or estate planning, please contact our team.
10 August 2022
[1] Section 57(1)(f) of the Act provides that a person who is in a ‘close personal relationship’ with the deceased person at the of their death is an ‘eligible person’ for the purposes of making a family provision claim.
[2] Section 59(1)(c) of the Act.
[3] Section 57(1)(f) of the Act
[4] Sun v Chapman [2022] NSWCA 132 at 119 (White JA)
[5] Section 60(2)(h) of the Act
