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Left out of the Will: WA Court steps in to protect long term de facto partner

12 Jun 2025

Wills & Estates

The recent decision in Whiteford v Crofts [2025] WASC 177 by the Supreme Court of Western Australia offers valuable insights into the application of the Family Provision Act 1972 (WA) (“the Act”) in the context of de facto relationships.

The case highlights the need to carefully consider the position of long-term de facto partners in estate planning and demonstrates how the Court may exercise its discretion to rectify inadequate testamentary provision.

Background

The Plaintiff, Addolorata Whiteford (the Plaintiff) brought proceedings against the estate of her deceased de facto partner, David Neill Livingstone. The Plaintiff and the deceased had been in a continuous de facto relationship for approximately 13 years and 6 months, cohabiting in properties both in Western Australia and Italy. Despite the longevity and nature of the relationship, the deceased’s Will, dated 23 June 2018 left the Plaintiff only certain Italian assets (including a property and related chattels) and no share of the residuary estate, which was divided equally between his two adult children.

Following a grant of probate to the executor (the deceased’s daughter), the Plaintiff initiated proceedings under section 6(1) of the Act to seek a larger share of the estate, asserting that the Will failed to make adequate provision for her proper maintenance, support, and advancement in life.

The estate

In Whiteford v Crofts, the value of the estates and the bequest are as follows:

Italian Estate (Rome Property and related assets):

Valued at €95,000, which was approximately AUD $155,553.26 (at 26 August 2022).

Australian Estate (including superannuation):

Valued at AUD $657,078.30.

Value of the bequest to Plaintiff:

All of the Italian assets, including the Rome Property, personal possessions, vehicles, and bank accounts in Italy; and
An additional AUD $110,000 from the deceased’s superannuation.

So, the total value of the bequest to the Plaintiff is approximately AUD $265,553, while the remaining AUD $547,078 of the estate is divided equally between the deceased’s two children.

Key legal issues

The main issue for determination was whether the Plaintiff had been left without adequate provision. The legal framework required the Court to undertake a two-stage process to establish if the Plaintiff would be successful under section 6(1) of the Act:

Jurisdictional Threshold: Determine whether the Plaintiff had been left without adequate provision at the date of death.
Discretionary Relief: If so, determine what provision (if any) ought to be made for the Plaintiff from the estate.

Whitby J recognised the established principles set out by the Court of Appeal in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12, which reaffirmed the two-stage inquiry and the need to consider the Plaintiff’s financial position, the size and nature of the estate, and the nature and history of the relationship.

Findings of the Court

At the first stage, the Court was satisfied that the Plaintiff had been left without adequate provision. This Court referred to:

The length and depth of the de facto relationship;
The financial interdependence between the Plaintiff and the deceased;
The modest size of the estate (approximately $800,000 in total)
The Plaintiff’s financial vulnerability, including limited income and limited assets; and
The absence of competing financial claims from the deceased’s adult children.

The Court found that clause 11 of the Will, which left the Plaintiff a 50% interest in the Italian property and some related possessions, did not meet the standard of adequate provision, particularly given the absence of cash assets or income-generating property.

At Court to address the above findings, approved a negotiated settlement. Under the terms of a deed of family agreement and consent orders:

The Plaintiff would receive all of the deceased’s Italian assets;
The Plaintiff would be paid $110,000 from the deceased’s superannuation; and
The remainder of the estate would be distributed equally between the deceased’s two children.

The Court found that this revised distribution achieved an appropriate balance, providing the Plaintiff with the means to maintain a standard of living comparable to that she enjoyed during the relationship, and offering a reasonable financial buffer for future contingencies that may arise.

Importance of the decision

Whiteford v Crofts provides as a timely reminder of the importance of recognising de facto partners in testamentary arrangements. In Western Australia, a de facto partner has the same standing as a spouse under the Family Provision Act, provided the relationship meets the statutory criteria.

The decision highlights that even where a will makes some provision for a de facto partner, the Court may still intervene if the provision is not adequate in all the circumstances. Importantly, the Court will consider emotional, financial, and practical dimensions of a claimant’s relationship with the deceased.

This case also demonstrates the Court can resolve a matter by reaching a deed of family agreement and as well as consent orders. This means the parties avoided the costs and delays of a contested hearing. The Court’s willingness to endorse such agreements, provided the statutory criteria are met, reinforces the value of mediation and alternative dispute resolution in family provision claims.

Practical implications

For legal practitioners and estate planners, this decision reinforces several key practice points of which is important for others to note:

De facto partners must be properly considered in will-making, particularly where there is a long-term, financially interdependent relationship;
Partial provision (e.g. a single property) may not satisfy the requirements of adequate provision under the Act;
Adult children of the deceased, particularly those who are financially independent, may have weaker competing claims compared to a dependent de facto partner; and
It’s important for clients to document their intentions and the reasons for excluding or limiting provision to certain individuals, though such statements are not determinative.

Lavan comment

Contact Kerri Meyers to ensure your will reflects your intentions and protects your loved ones from unnecessary litigation.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.