Successful Judgement as Court Alters the Will of Deceased for Former Defacto Partner

Published 26 Nov 2012

Author: David Cossalter

We acted for Ms Marando, the former de facto partner of the late Aniello Rizzo who passed away on 30 November 2009, leaving a significant estate comprised primarily of property and business interests. The estate had an estimated value of $1.5 million.

Our client and the deceased were high school sweet hearts who had ultimately gone their separate ways. The re-met later in life and undertook an intense and volatile 12 month relationship. This union involved many arguments resulting in the termination of the relationship but also many periods of intense love and reconciliation.

Our client ultimately moved into the deceased’s property where they cohabitated in a de facto relationship. Our client became dependant on the deceased both financially and emotionally.

The Substantive Proceedings

Upon discovering that she was not provided for in the Will of her late partner Ms Marando contacted our office to obtain advice as to her rights in relation to the estate.

It was identified that we were required to establish that our client was an eligible person to make a claim on the estate and to this end we identified that she may have two potential avenues available to her being:-

(a)      As a de facto partner at the time of death; or

(b)      A person who is a member of the household of which the deceased was a member and was, at any particular time, wholly or partially dependant upon them.

Our client lived with the deceased and through her financial and emotional insecurity became dependant upon. We identified that she was eligible to make a claim, however the far more beneficial claim and potentially higher value claim was establishing that at the time of his passing Ms Marando and Mr Rizzo were in a de facto relationship. This involved an analysis of the relationship at whole and in particular issues surrounding various terminations and reconciliations of the relationship. The matters a court consider are:

(a)      the duration of the relationship,

(b)      the nature and extent of their common residence,

(c)      whether a sexual relationship exists,

(d)      the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e)      the ownership, use and acquisition of property,

(f)       the degree of mutual commitment to a shared life,

(g)      the care and support of children,

(h)      the performance of household duties,

(i)       the reputation and public aspects of the relationship.

It was put forward by the defendant, at trial, that at the time of his death Ms Marando and Mr Rizzo had irrevocably terminated their relationship. It was emphasised that this termination came about following a domestic disturbance and the involvement of police.

It was not accepted that, at the time of his passing, Ms Marando and Mr Rizzo had reconciled. The Court determined that in light of the nature of the domestic disturbance and termination of the relationship shortly after, the parties had not reconciled. The Court however found that had the parties reconciled they would have been in a de facto relationship.

Regardless of this it was found that as Ms Marando had resided with Mr Rizzo and was dependant upon him. She was found to be an eligible person and as such was successful in her claim.

The court then analysed her financial position and identified the moral obligation that the deceased would have to Ms Marando following their intense 12 month relationship.

After 2 days of trial His Honour Hallen AsJ delivered Judgment in favour of our client in the amount of $50,000.00 plus costs, a figure which far exceeded any offers made by the estate.

In the circumstances and the factual situation of this case our contesting wills lawyers and the barrister, Mr Izaz Khan, was satisfied that this was a fair and equitable Judgment. Our client was overjoyed with the result as the funds she received from this estate truly assisted her financial position.

This case has been able to identify that the court is willing to alter the Will of a deceased person, even when the period of cohabitation and reliance is limited to 12 months. This case also clearly identified that not only wives and children can make claims on the estate of a person but that de facto spouses and former partners also have such rights.

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