A Close Personal Relationship, for the purposes of claiming Family Provision, arises between two persons living together, where either or both persons were providing the other with domestic support and personal care. This raises the question: what constitutes 'living together' for the purposes of establishing a Close Personal Relationship?

The Facts

The plaintiff, Simon Khadarou, was a friend of the deceased, initially having met through helping the deceased fix a van outside. Their friendship grew over the years, and the plaintiff spent increasingly significant amounts of time with the deceased, eventually sharing meals and spending the majority of the day at his house before returning to his home to sleep. The plaintiff also took on responsibility for cleaning areas of the house, attempted to repair the floors, and assisted the deceased with personal care and visits to the hospital.

Under the deceased's will, the deceased's brother inherited the entirety of the estate and no provision was made for the plaintiff. Consequently, Khadarou applied for family provision out of the deceased's estate on the basis that he was living in a close personal relationship with the deceased.

What Constitutes Living Together?

In assessing the plaintiff's family provision claim, the Court noted the following in respect of the living together requirement. Living together requires the 'sharing of a home'. While the two people don't need to spend 'the whole of their respective times' at the premises, each person must be seen to regard that place as their home and do so 'on a rational basis'. The nature and extent of the cohabitation will be assessed objectively, in which the following factors will be relevant:

  • Whether the plaintiff and deceased shared a residential address.
  • Whether there was a residence they both called home.
  • Whether household decisions were made together and if the responsibility of maintaining the household was jointly undertaken.
  • Whether and how often the plaintiff and deceased slept at the same premises.
  • Whether the plaintiff and deceased shared the facilities of day-to-day living to the extent that they were sharing a household.
  • Whether both kept their clothing, domestic and personal effects at the same premises.
  • Whether the plaintiff and deceased were simultaneously present at the same residence.

Were the Plaintiff and the Deceased living in a Close Personal Relationship?

The Court was satisfied that a close friendship had been established and that the plaintiff had provided the deceased with domestic support and care. Consequently, the plaintiff's eligibility to claim turned on the living together requirement. In respect of this, the Court found the following:

  • The plaintiff never slept over at the deceased's house; even when he had stayed at the deceased's house until late, he always returned to sleep in the house where his wife and children resided. Consequently, it was doubtful that the plaintiff reasonably regarded the deceased's property as his home.
  • While the plaintiff and deceased engaged in several activities that people living together would, such as carrying out maintenance, removing waste, assisting the deceased when he was distressed, accompanying the deceased to the supermarket, and modifying the furniture to accommodate the deceased's mobility difficulties, they were not sleeping under the same roof, so they could not be considered to be living together.
  • Similarly, while the plaintiff assisted the deceased with personal hygiene, shared meals with him and assisted in maintaining the deceased's home, it remained clear that both retained their own homes and thus did not indicate that they were living together.
  • The fact the deceased and plaintiff spent frequent time together was indicative of a close friendship, however, it was not itself enough to establish a close personal relationship.

Outcome

The Court dismissed the plaintiff's claim, holding that the deceased and the plaintiff were not living together, and thus the plaintiff and the deceased were not in a close personal relationship for the purposes of the Succession Act.

The Takeaway

A close personal relationship will not be established where the living together requirement cannot be satisfied. As is clear above, the fact that an applicant provided the deceased with copious domestic support is immaterial to a family provision claim. The central question remains whether or not the applicant reasonably regards the deceased's place as their home. If that is unable to be established, the living together requirement will not satisfied.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.