My 91 year old mother has been in de facto relationship for…

Property is not normally split evenly in defacto relationships. For a defacto relationship of the length in question, the parties would be entitled, during their life, to apply for orders under the Family Law Act (The property relationships Act generally only applies to de facto relationships of less than 2 years after which the Family Law Act applies) where by property is broadly apportioned according to what is fair having regard to:

1. the size of the asset pool available for distribution;

2. the contributions, financial and non-financial that each party has made;

3. the special health needs of each party or any other special circumstance.

Because the formula is subjective and dependent on the particular circumstances of your mother and her partner, only a fully briefed lawyer could give a firm view as to what the proper apportionment might be in her particular case.

Note that this is the sort of application that would need to be made if your mother wanted to force the sale of the property. Absent such an order it will be up to the partner, or the partner's enduring attorney, to make such decisions and your mother is not automatically entitled to expect that the property would be sold based on her needs. Indeed, if the property is being used to secure his rest home needs then selling it may not be an option.

If an apportionment of assets is to be sought on the above basis it needs to be done before the partner dies. Note that such an application can be brought whether the parties separate or not, separation being a pre-requisite for divorce orders not property orders, which are separate court proceedings, so it doesn't really matter whether a court determined they were separated (though the mere fact that she moved away would, of itself constitute a separation in any event).

Until the partner dies the terms of his will are not relevant, but after he dies his will and other succession law issues then determine the parties respective property rights, and the family law act will no longer be relevant.

Under the Succession Act, if the will fails to make adequate provision for your mother (having regard to all the other competing potential beneficiaries claims - such as the partner's children) then your mother could apply to the court for orders adjusting the provisions under the will. So if the will only provides for her to have the right to live in the home, and her health needs do not make that a viable option, then she would likely have fair prospects of obtaining an order for some alternate arrangement - perhaps the sale of the property with her receiving a share, or the right to use the capital for more suitable accommodation. The relevant provision is here:

http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s59.html

Again, because there are so many variables involved, only a lawyer fully briefed in the circumstances, not only of your mother, but of the competing beneficiaries could give you a firm view as to the likely outcome of such an application.

I would suggest you locate a lawyer with experience in both family and probate law and get a formal advice as to the best way forward. The partner's family's offer to pay for a retirement unit might be a reasonable compromise, or it may be inadequate, in which case further negotiations may be warranted. Only by getting a proper legal assessment of the value of alternate options that you could sensibly negotiate with them.

If you need assistance locating a suitable lawyer, contact the Law Society of NSW as they can refer you to suitable lawyers in your area (you want a lawyer who practices both family and probate law):

http://www.lawsociety.com.au/

As you can see there is no simple answer as to the best way to proceed, however I trust the above assists your understanding.

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Thank you and good luck,

Patrick