Old and valuable friends not a de facto couple - Family Protection Claim Fails

23 June 2016

Under the Family Protection Act 1955 certain family members are entitled to make claim against a deceased?s estate if they believe the deceased did not leave adequate provision for them in the deceased?s Will. Among those family members entitled to claim are the de facto partner (or partners) of the deceased if they were living in a de facto relationship at the date of the deceased?s death.

Whether or not a de facto relationship exists, and therefore whether a claim is possible, is determined by the criteria set out in the Property (Relationships) Act 1976. Both of the couple must be over 18, they can be the same sex or different sexes, they must ?live together as a couple? and they must not be married or in a civil union. In determining whether two persons live together as a couple, all the circumstances of the relationship are to be taken into account, including: the duration of the relationship, the nature and extent of common residence, the existence of a sexual relationship, the degree of financial dependence or interdependence, the ownership and use of property, the degree of commitment to a shared life, the care and support of children, the performance of household duties and the reputation and public aspects of the? relationship. A de facto relationship ends if the couple cease to live together as a couple or one of them dies.

The Court can decide which of the above matters is relevant and attach whatever weight to any matter it feels appropriate in the circumstances. Especially in cases where the couple do not live together, it can be very difficult to determine whether the law would regard the relationship as a de facto relationship or not. In a recent case (Gera v Moir [2015] NZHC 613) the District Court judge in the first instance heard competing witnesses on credibility and embarked upon ?the almost impossible task of extracting patterns and analyses? from the deceased?s 27 diaries containing some 8,000 pages to determine whether a de facto relationship existed. Undoubtedly this was not an easy task and, with that amount of factual information to consider, it is not unlikely that a different Judge might have formed a different view.

District Court decision upheld ? no de facto relationship at time of death

During Mr Berry?s relationship with Ms Gera, they had not lived in the same home together for any length of time, although they had stayed with each other for periods of time and Ms Gera had travelled with Mr Berry for his work. Mr Berry had made a Will on his death bed leaving Ms Gera a life interest in a residential unit he had purchased not long before he died. Mr Berry left the rest of his estate (including a dairy farm) to his children. Ms Gera brought proceedings challenging that Will.

The High Court Judge was not persuaded that the District Court Judge was wrong when he found that over 32 years the relationship between Mr Berry and Ms Gera had progressed from one of friendship to a de facto relationship. The Judge also agreed that they had been lovers and close friends over a long time but a rift developed in 2011 and the de facto relationship ended. The de facto relationship had not been renewed by the time Mr Berry died although Mr Berry and Ms Gera were still old and valuable friends. As a result Ms Gera?s appeal failed and she was not entitled to claim against Mr Berry?s estate.

Specialist legal advice highly recommended

Some couples who do not live together may regard themselves as being a de facto couple and some may not. The same may be the case for couples who live together. If the relationship ends (either because the couple separate or one of them dies) the Court might find otherwise. Clearly there are significant implications in respect of their property if a Court finds a de facto relationship existed. Even if the Court finds no de facto relationship, the costs, delay and stress that result from legal proceedings to determine whether there is a de facto relationship or not can be enormous. If you are in a relationship and you are not sure whether it could be a de facto relationship you should take legal advice from a lawyer specialising in this area. By signing an agreement which meets the legal requirements of the Property (Relationships) Act 1976 you may be able to bring some certainty to your situation.


Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.

Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.