Proving a de facto relationship in the event of intestacy

When a person dies without a will (intestate), the law provides rules about who inherits the estate. But what happens when a person claims to be the deceased’s de facto partner and wants to either administer the estate or make a family provision claim under the Succession Act 2006 (NSW)? The case of Sheen v Hesan; The Estate of Zaheer [2023] NSWSC 468 offers a compelling look at how the Supreme Court of NSW examines these complex and emotionally charged situations.

This case centred on whether the plaintiff, Ms Sheen, was the de facto spouse of the deceased at the time of his death and therefore entitled either to administer the estate or to receive provision from it. The dispute involved contested factual evidence, emotional testimony, and the application of intricate provisions of NSW succession law.

The Background: A Tragic Death and a Disputed Relationship

In July 2020, Mr Mohammad Bashir Zaheer tragically died after being stabbed by a former employee. At the time of his death, he had no will, no surviving children, and his estate, made up of real estate and business interests, was valued in the millions.

The plaintiff, Ms Doe Hwa Sheen, alleged she had been in a 13.5-year relationship with Mr Zaheer and had been living with him in a de facto relationship for at least the last five years prior to his death. She sought recognition as his spouse under Section 104 of the Succession Act 2006 (NSW) to claim the entire intestate estate and, in the alternative, made a family provision claim.

The defendant, Ms Najia Hesan, sister of the deceased, strongly disputed this. She claimed that no de facto relationship existed, or that if it had, it had ended before Mr Zaheer’s death, thereby rendering Ms Sheen ineligible to claim under intestacy or family provision rules.

Key Legal Issue: Was Ms Sheen a Spouse at the Time of Death?

The central question was whether Ms Sheen was in a domestic partnership with Mr Zaheer “immediately before his death”, as required under s 104(b) of the Succession Act 2006 (NSW).

This required the Court to determine:

• Whether a de facto relationship existed;
• Whether it had continued for at least two years;
• Whether it had ended before the deceased's death, voluntarily or otherwise.

His Honour Hallen J carefully applied the definition of a de facto relationship from Section 21C of the Interpretation Act 1987 (NSW), which includes a wide range of factors, such as shared residence, financial interdependence, and mutual commitment to a shared life.

The Evidence: Two Sides of the Same Story

The Plaintiff’s Case

Ms Sheen testified that she met Mr Zaheer in 2006, began a relationship in 2007, and began cohabitating in 2015. She claimed to have lived with him at his Pyrmont apartment (Unit 215) and supported her claim with:

• Photographs and video recordings showing the pair in domestic settings;
• Testimony from friends and relatives;
• Rental documents indicating her presence at the Pyrmont complex;
• Statements regarding shared finances, gifts, and time spent together.

She described the relationship as private, partly due to her religious upbringing and Mr Zaheer’s Muslim background.

The Defendant’s Case

Ms Hesan, along with other family and friends, argued that:

• The deceased had not introduced Ms Sheen as his partner;
• There was no public recognition of the relationship;
• They did not share finances in a meaningful way;
• Mr Zaheer had other close relationships inconsistent with de facto status.

Further, the defendant argued that if there was a de facto relationship, it had broken down well before the deceased’s death.

The Court’s Approach and Findings

Hallen J acknowledged that assessing the existence of a de facto relationship requires considering the totality of the relationship. He noted that:

“No particular finding in relation to any of [the s 21C factors] is necessary in determining whether two persons have a relationship as a couple.”

Importantly, the Court found inconsistencies and credibility issues in both parties’ evidence. However, after assessing all materials, Hallen J concluded that:

• A de facto relationship existed;
• The relationship had continued for at least two years;
• The relationship had not broken down before the deceased’s death.

This finding entitled Ms Sheen to the entire intestate estate, subject to costs.

Alternative Claim: Family Provision Application

Although the primary claim succeeded, the Court also considered the alternative family provision claim had the de facto relationship not been established.

Under section 57(1) of the Succession Act, Ms Sheen would still have needed to prove eligibility under one of the alternative categories:

• s 57(1)(e) – a person partly dependent on the deceased and part of the same household;
• s 57(1)(f) – a person in a “close personal relationship” with the deceased.

The Court was satisfied that if the primary claim failed, Ms Sheen would have met one or both of these categories, particularly given her long-standing cohabitation and interdependence with the deceased.

Further, the Court found that factors warranted the making of the application, as required under s 59 of the Act for these categories.

Lessons from Sheen v Hesan

This case is a valuable reminder that:

1. A de facto relationship is not always easy to prove. Courts assess numerous factors, and conflicting evidence can make or break a claim.
2. Private relationships need corroboration. When a relationship is kept private for cultural or religious reasons, the evidentiary burden becomes heavier.
3. Not being in a will doesn’t end the matter. If a person dies intestate, those who consider themselves close to the deceased may still have valid rights under the Succession Act.
4. Timing is critical. Even if a relationship existed, the Court must be satisfied it was ongoing immediately before death. The idea of a relationship “breaking down” before death can disqualify a claimant.
5. Evidence is everything. The Court gave weight to video footage, rental history, witness testimony, and financial records in evaluating the claim.

Final Outcome

The Court ultimately recognised Ms Sheen as the de facto spouse and awarded her the whole of the intestate estate, excluding the value of estate liabilities and legal costs. Additionally, gross costs were ordered for both parties to avoid further disputes over assessments.

For those in long-term relationships, this case underscores the importance of legal clarity. Registering a de facto relationship, making a will, and seeking legal advice can avoid complex and costly disputes later.