A person living in a Close Personal Relationship with the deceased at the time of the deceased's death is eligible to claim family provision. Under the Succession Act a Close Personal Relationship will be established where the parties were living together and either or both parties were providing the other with domestic support and personal care. These requirements were considered in Smoje v Forrester.
David Forrester, a Friend and Former Flame of the Deceased's, made a Family Provision Claim alleging to have been in a Close Personal Relationship with the Deceased.
The deceased, Miryana Smojed, died without a will and per the laws of intestacy her entire estate passed to her brothers. David Forrester, a friend and alleged former lover of the deceased's, applied for a family provision order on the basis that he had been living in a close personal relationship with the deceased at the time of her death.
The relevant facts were as follows. The deceased was terminally ill and prior to her death she was living in a hotel room. Forrester, although maintaining his own residence, regularly visited the deceased to provide her with care and support and would occasionally spend the night with her.
Forrester's application was successful at first instance; however, the deceased's brother appealed and questioned whether Forrester had in fact been in a close personal relationship with the deceased.
Was Forrester an Eligible Person?
Forrester’s application was successful at first instance; however, the deceased’s brother appealed. On appeal, the key question was whether Forrester was an eligible person. The Court held that:
On appeal, the Court held that Forrester was not an eligible person given the following:
- The evidence did not support a finding that Forrester and the deceased were ‘living together’. Here, ‘living together’, although not requiring parties to live together at a single residence, was held to require ‘elements of interaction and sharing whilst engaging in activities associated with occupying the same place’. In this case, Forrester’s repeated visits for the singular purpose of providing care and support were not deemed to satisfy such a description.
- The evidence clearly indicated that Forrester did not regard the hotel room as his room. Further, the evidence as to the physical appearance and contents of the room in which the deceased’s belongings cluttered both beds in the room, meant that it did not appear plausible that someone other than the deceased was living there.
The Court concluded that Forrester had failed to show that he had been living in a close personal relationship with the deceased at the time of her death. Forrester's claim was dismissed on the grounds that he was not an eligible person.
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