The Succession legislation throughout Australia recognises a claim by a de facto partner against the estate of a deceased for family provision.
In the recent NSW decision of Estate Fleming; Ruiz Nunez v Rau [2026] NSWSC 908, the Court had little hesitation in finding that a family provision order was to be made in favour of the de facto wife of the deceased who remains the sole guardian and carer of the couple’s 12-year-old daughter.
The case is a useful illustration of the threshold questions and discretional factors that will support an application for further provision from an estate. It is also a timely reminder that one’s will is a living document that should evolve overtime as familial dynamics and relationships change.
The facts
The Deceased, a 57-year-old man, died suddenly and unexpectantly in a surfing accident while on a family holiday.
The first cousin of the deceased sought probate of his will dated 2 March 2007 (“2007 Will”), which relevantly left his estate to his children in equal share. The 2007 Will was made before the deceased commenced his De-facto relationship with the Plaintiff. The effect was that she was entirely excluded from the Will.
The beneficiaries included:
- Two children from his former marriage (which concluded in 2005); and
- His daughter from his de-facto relationship with the plaintiff.
The Plaintiff, who had been in a de facto relationship with the Deceased since 2011, sought to challenge the provision made in the 2007 Will, on the basis that adequate provision had not been made for her.
The application for provision was challenged by the children of the Deceased’s former relationship.
The Questions before the court
The central questions before the Court, as in any family provision claim, were:
- Whether the Plaintiff had standing to bring the claim;
- Whether the Plaintiff had been left with inadequate provision; and if so
- what adequate provision would be for her maintenance and advancement in life.
The Law – Who can bring a family provision application?
The claim for family provision was brought under Section 59 of the Succession Act NSW [2006]. In Queensland, the analogous legislation is contained in Section 41 of the Succession Act QLD [1981]. While the provisions differ in wording between the jurisdictions, the central factors are the same.
Fundamentally, family provision legislation in Australia recognises that testators owe a moral duty to a certain class of people. That is to say, by virtue of a person’s relationship with the deceased (as a spouse, child or dependant), a court will recognise that there was a duty to provide for said person in the Will.
This is often referred to as the “jurisdictional question”. Just because a person is eligible for provision under the applicable succession act, it does not mean that their claim will succeed.
The “two stage test”
Ina family provision claim, the court will “place itself in the position of the deceased, and consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish”.
In carrying out this role, the Court will be guided by two key enquiries that have emerged from the long-standing case law:
- Has Adequate provision been made for the applicant? and if not;
- what would adequate provision be?
Both enquiries necessarily look to the circumstances of the claimant, their level of need, the size of the estate and the relationship they had with the deceased. While the questions are seemingly simple ones, there are a multitude of discretional factors that weigh (to varying extents) in a Judge’s reasoning and the ultimate outcome of a family provision claim.
Application in the case of Estate Fleming; Ruiz Nunez v Rau [2026] NSWSC 908
The court had very little difficulty in establishing that the plaintiff was the de facto partner of the deceased, and therefore a person with standing to apply for family provision. His Honour Lindsay J awarded the sum of $x to the plaintiff by way of provision.
Successful family provision claim despite de facto receiving $540,000 in superannuation death benefit?
The question of adequacy was squarely answered by the fact that the 2007 Will left nothing for the de facto partner. weighing against this was the fact that the deceased made provision for her in the form of a superannuation death benefit in the sum of $541,508.45.
She was left, two days after her 52nd birthday, without accommodation other than the family home at Elanora Heights, as a single mother of a young child, without any provision made for her in the deceased’s will, and with a more pressing need than formerly to work in paid employment to support their young daughter.
In arriving at the conclusion that despite a superannuation entitlement of $541,000 under a superannuation nomination, the applicant had indeed been left without adequate provision for her proper maintenance, education and advancement in life, his honour Lindsay J said:
[62] “In assessing whether (within the meaning of section 59(1)(c) of the Succession Act) the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life, viewed as at the present time, I proceed on the basis that the superannuation benefit conferred by the deceased on the plaintiff is to be taken into account as a form of “testamentary provision” for the plaintiff, perhaps (but only debatably so) taken into account by the deceased in not revising his will during the period of his relationship with the plaintiff.
[63] Generous though that superannuation benefit may have been, it falls short of what, viewed through the prism of the present time, should reasonably be expected for the proper maintenance, education or advancement in life of the plaintiff as she approaches her 54th birthday with a dependent child and lack of security for accommodation and future income.
[64] The plaintiff enjoyed a lengthy de facto relationship with the deceased, cut short by his untimely death, leaving her as a single mother of a young person without security of accommodation or income, and no testamentary provision for the child for another 12 years or so. All this in circumstances in which the plaintiff had exited the paid workforce to play the role of a wife and mother in a stable family environment in which the plaintiff and her daughter enjoyed a secure place of residence and purposive overseas travel.”
In weighing up all of the factors, including the history of the applicant’s relationship with the deceased, her abandonment of a career to be a mother, ability to maintain herself and child, and needs of the other parties the Court ordered that:
- a property being the former jointly occupied “family home” be transferred to the applicant upon her acceptance of the liability of the mortgage;
- payment be made for the children of the deceased of the former relationship; and
- Payment of a sum to the public trustee for the minor child of the relationship with the deceased.
Key Takeaways
While the court’s reasoning aligns with established principles, the circumstances of Estate Fleming are increasingly common in modern blended families. The decision underscores that even significant non-estate assets (such as superannuation death benefits) may not prevent a successful family provision claim if a surviving partner or dependent is left without adequate security. It also serves as a critical reminder to regularly review and update testamentary arrangements as relationships and family dynamics evolve.
How We Can Help
Timely legal advice is essential if you have been excluded from a loved one’s will, are facing an unexpected estate dispute, or need to safeguard your estate plan against future claims.
Contact Michael Sing and the estate litigation team at Rostron Carlyle Lawyers today for practical, commercial guidance tailored to your circumstances.
