Pollock v NSW Trustee & Guardian

In the case of Pollock v NSW Trustee & Guardian, the plaintiff sought to challenge a will under the Family Provision Act 1975. The primary issue in the case was whether the plaintiff had been living in a de facto relationship with the deceased at the time of their death, which would entitle the plaintiff to a claim under the Act. The court was required to determine whether this de facto relationship had ended and, if so, when it had ended. It was undisputed that the plaintiff was a member of the deceased's household and was partly dependent on the deceased at the time of their death. Additionally, there was no dispute that there were factors present in the case that warranted the making of the application, and that adequate provision for the plaintiff had not been made by the deceased's will.

The court examined the evidence presented and considered the circumstances of the case to determine whether the plaintiff was entitled to a claim under the Act. The court found that the plaintiff had indeed been living in a de facto relationship with the deceased at the time of their death. The court noted that while there were periods of separation between the plaintiff and the deceased, these periods were not of sufficient length or significance to constitute a termination of the de facto relationship. The court further found that the plaintiff was entitled to a claim under the Act, as they had not been adequately provided for by the deceased's will.

The court then considered the nature and quantum of the provision to be made for the plaintiff. The court found that the plaintiff was entitled to a provision that would ensure their proper maintenance, education, or advancement in life. The court ordered that the defendant make a provision for the plaintiff in the sum of $200,000, payable within 28 days of the judgment. The court also ordered that the defendant pay the plaintiff's costs of the application.