A Domestic Partner’s Entitlement

In order to contest a Will under the Administration and Probate Act 1958 (Vic) (the Act), you first have to prove that you are part of an ‘eligible class of person’ per s 91(2)(b) of the Act. Then it must be proven that the deceased had a moral obligation to provide for your proper maintenance and support, and last that the proposed distribution of the deceased’s Estate failed to do so.

Registered or Unregistered Domestic Partner Eligibility

The first class listed is a spouse or (registered or unregistered) domestic partner at the time of death.

Per the act, to be considered an unregistered domestic partner and therefore eligible, you must have been living with the person at the time of the person’s death, as a couple on a genuine domestic basis; and either had lived with the person in that matter continuously for a period of at least 2 years immediately before the person’s death; or is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death.[1]

However, the Court takes into consideration a multitude of different factors and just because eligibility is either fulfilled or not/only part fulfilled, it does not automatically allow or bar a claim.

These factors assessed include the financial position of the applicant, the size of the Estate, the relationship between the claimant and the deceased, competing interests of others and the conduct of the eligible before and during the litigation process.

Case Study – Eligibility alone does not guarantee success

A 2014 Victorian Supreme Court case of Morris v Smoel saw a widow fail for further provision despite both clearly being part of an eligible class, and the deceased undoubtedly having a moral obligation to at least provide a home for her, but failing to do so.

The judge said that ordinarily the widow would have had a good claim, but her conduct during the litigation process meant she wasted the courts time and resources by pursuing vexatious claims unrelated to the family provision claim. By the end of the litigation process the widow had dwindled the Estate down from 1.8 million at the date of the deceased’s death to no more than $200,000. Hence, the judge found that despite the success of her claim in the standard circumstances, her conduct and attitude resulted in costs actually being ordered against her and subsequently dismissed her claim.

Case Study – Never lived together, but still had a moral duty to provide

In Sinclair v Forsyth [2008] the deceased was a bachelor and the plaintiff was at all times married to another man. Thus, they never lived together, were financially separate and maintained separate residential addresses. During their 15 year relationship, the couple did however spend much time at each other’s houses, attending social functions and were exclusive sexual partners.

The court found that the deceased had a responsibility to make provision for the plaintiff, even though the longstanding relationship lacked a number of features common to a de facto or domestic relationship. The judge concluded that the couple had a longstanding intimate and caring relationship with strong “emotional and spiritual” bonds and a deep affection for one another, where they shared nearly all significant moments of their lives. Thus, the plaintiff’s claim was successful as on the evidence the plaintiff would have lacked adequate provision for maintenance and support if an order was not made. The decision was upheld on appeal.

However, this case occurred before there was a change in law in 2014 which introduced the requirements of eligibility for unregistered domestic partners, thus the success of a similar scenario is unknown.


As domestic partnerships are a relatively new area of law, and is yet to be explored in its entirety, there are no definitive rules about when a family provision claim will succeed. All we do know is that the court decides each case on its own merits after balancing the relevant statutory criteria with the individual circumstance.
Thus, we recommend you get in contact with the team at Hentys Lawyers today. We can help you assess your claim, and can provide guidance in Inheritance Disputes or Challenging a Will.

[1] Administration and Probate Act 1958 (Vic) s 3