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Family provision case study – ‘Living Together’

What does ‘living together’ mean in the context of a claim for a family provision order against a deceased estate?

The New South Wales Court of Appeal recently delivered its decision in the matter of Yesilhat v Calokerinos [2021] NCSWCA 110 (28 May 2021), an appeal from the decision of Slattery J.

The decision provides further guidance on the legal concept of ‘living together’ for the purposes of eligibility to claim for provision or further provision out of a deceased’s estate under sub-sections 57(b), (e) and (f) of the Succession Act 2006:

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person‘s death,

(e) a person:

           (i) who was, at any particular time, wholly or partly dependent on the deceased person, and

           (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, or

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person‘s death.

The Facts

Mr Sclavos (‘the deceased’) died on 13 August 2013. He had never married and had no children. He left his $6 Million estate under an informal Will to his two nieces (and next of kin) in equal shares.

The appellant, Mr Yesilhat brought proceedings challenging the will and alternatively claiming orders for family provision on the basis that he was eligible as either a de facto partner, a member of the deceased’s household and dependent upon him or living in a close personal relationship with him.

He alleged that he had been in a secret same sex relationship with the deceased for some 14 years prior to the deceased’s death, which included a sexual relationship and financial interdependency. The relationship was said to have occurred exclusively at the premises of the deceased’s pharmacy business.

Mr Yesilhat alleged that he and the deceased cooked and shared meals together, that he attended to the deceased’s personal grooming on occasion, and that he occasionally helped the deceased pack shelves at the pharmacy. There had been a significant financial accommodation by the deceased to Mr Yesilhat giving him access to his business bank accounts as a line of credit to fund Mr Yesilhat’s own business.

 ‘Living together’

The Court of Appeal dismissed the appeal, finding, among other things, that Mr Yesilhat had not established on the evidence that he and the deceased had been ‘living together’ at any stage of the relationship, and as such was not eligible to bring a claim under either of sub-sections 57 (b), (e) or (f).

In order to establish that he was living together with the deceased during the alleged relationship, it was necessary to show:

  • There was some level of common residence;
  • There was a degree of commitment to a shared life;
  • That he was a member of the household of the deceased; and
  • There was a degree of continuity and permanency of living arrangements.

As Mr Yesilhat claimed that he lived with the deceased at the pharmacy premises, it was necessary to show that the deceased himself recognised those premises as his home. Whilst the deceased did work late often given the nature of his business, he did not live at the pharmacy. In fact, he maintained a separate residence at Strathfield to which Mr Yesilhat had never been. The deceased did not have sleeping quarters at the pharmacy or even maintain his clothes there (except for a change of clothes). Rather, the pharmacy premises were occupied solely for commercial purposes.

Mr Yesilhat had also been married twice in the nine years prior to the deceased’s death and shared a residence with each of his wives. He had only ever seen the deceased at the deceased’s pharmacy business after hours and for a significant part of the alleged relationship only a few times a week.

Whilst the Court found that there was some level of financial interdependency, the arrangement was characterised as a benevolent commercial arrangement between the deceased and Mr Yesilhat, and nothing more. There was no continuity or permanency of the financial relationship.

Accordingly, it was found by the Court that Mr Yesilhat had never been part of the deceased’s household and could not be said to have been living with the deceased at any time.

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