Avoiding problems causes problems… and were they de facto partners?

31 March 2020

Dakin v Floyd [2019] NSWSC 1220

This is a classic example of a person avoiding problems only to create a bigger problem for their family after death.

Les Floyd was born in 1949 and married Sally in 1971. They had three children together. Les and Sally separated in 2010 and made a financial agreement under the Family Law Act, but never actually divorced.

However, Les commenced a de facto relationship with Mansueta Dakin in 2013.

Les had made his last Will in 2006 by which he left all of his estate to Sally. He did not change the Will even after separating from Sally and commencing a new relationship with Mansueta.

Following Les’ death in April 2018, Mansueta made a claim for provision from Les’ estate on the basis that under section 57 of the Succession Act 2006 (NSW), she was an “eligible person” who:

  1. Was Les’ de facto partner at his date of death [section 57(1)(a)];
  2. Had been a dependant member of Les’ household [section 57(1)(e); or
  3. Was in a close personal relationship with Les at his date of death [section 57(1)(f)].

The judge said of the situation:

“Les failed to take two significant decisions in the last four years of his life, 2013 to 2017. By then, he had made a property settlement with Sally. He was free to divorce and remarry. He could have made another will. But he did neither.

“The pressures to inaction was strong. Balancing the competing factors he decided the better course was to do nothing. The reasons for this were complicated. First, Les was very fond of his daughters. Whatever had happened in his relationship with Sally, his bond with his three daughters was still very strong. Neither decision could easily be concealed from his daughters. Actively divorcing Sally or remaking his will would have created tension in his relationship with his daughters. And by then, he certainly did not wish to treat Sally that way. He kept sending her messages to maintain a link with her. In his last months she was sending him food and offering him support, mainly through their daughters.

“Secondly, what was he to do in a new will? Remaking his will was a very difficult decision. He was bound to disappoint somebody. If he gave any of his estate to Sally or his daughters in the new will, he no doubt anticipated Mansueta, with whom he was living on a day-to-day basis, would keep seeking change in her favour. If he were to give the whole of his estate to Mansueta, then his relationship with his daughters would be jeopardised. It was a no-win situation for him. Doing nothing was an obvious solution.”

Whilst Mansueta contended that she and Les we were still in a de facto relationship at his time of death, this was disputed by Sally who argued that they had separated some months before Les died. The status of Mansueta’s relationship with Lesley was relevant as it would affect her eligibility to make a claim and the amount she could expect to receive. If Mansueta was the de facto partner at the date of death, she would likely be awarded greater provision from the estate than if she had been a dependant or in a close personal relationship with the deceased.

Ultimately, the Court decided that there was no de facto relationship at the date of death but that Mansueta qualified as an eligible person under s57(1)(e) of the Succession Act on the basis that she was a person “who was, at any particular time, wholly or partly dependent on the deceased person and … was, at that particular time or at any other time, a member of the household of which the deceased person was a member”.

The estate was worth approximately $432,000 including superannuation. Neither Mansueta or Sally were in a strong financial position although Sally had received the benefit of the financial agreement upon her separation from Les in 2010. Ultimately, the court determined that Mansueta had been a dependant member of Les’ household and awarded her 55% of the residuary estate, and the remaining 45% of the residuary estate to Sally, with each of them to pay their own legal costs.

As the judge said: “Les’ wish to see ‘a real lawyer’ would in retrospect have been a good idea.”

This article was written by Michael Henley, Partner and Philip Davis, Special Counsel.


Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us