Man proves de-facto relationship and receives $177,00 estate

Published 24 May 2018

People who pass away without leaving a will are described as dying ‘intestate’, which means their assets are distributed to surviving relatives according to a legislative formula. In NSW, primacy is given to a spouse or de-facto spouse of the deceased.

However, as one man recently discovered, proving a de-facto relationship is usually far more difficult than handing in a marriage certificate. The man’s partner died in March last year, but the probate registrar refused to grant letters of administration to him because they claimed he had failed to show a de-facto spousal relationship existed between him and the deceased.

Following an appeal, the NSW Supreme Court ruled in the man’s favour and awarded administration of the $177,000 estate to him. But what factors did the judge consider when making the decision?

How is a de-facto relationship established?

Under intestacy laws within the Succession Act 2006, a spouse is defined as someone who was either:

  • Married to the deceased immediately before their death; or
  • In a domestic partnership to the deceased prior to their death.

The latter definition includes de-facto relationships, which are outlined in the Interpretation Act 1987 as a couple who are living together but are not married or related to one another.

Factors that are considered when evaluating whether a de-facto relationship exists include:

  • The duration of the relationship;
  • Whether a sexual relationship is present;
  • How the couple’s finances are organised;
  • Whether they share household and caring duties; and
  • How their relationship is presented to other people.

For the purposes of the Succession Act, a domestic partnership – and thus a de-facto relationship – must have existed for a continuous period of two years.

Why did the judge rule in the man’s favour?

Justice Francois Kunc found that while the couple did not share a single residence and had separate financial accounts, there was considerable evidence to suggest they were de-facto spouses.

The pair had three residences between them and divided their time as appropriate between the properties. The plaintiff claimed there was a sexual relationship between the two, with family and friends confirming they regarded them as a couple.

They also met the requirement of being together for a continuous period of two years, having met at Caulfield Cup Day Races in 1996 and maintaining a relationship until the deceased’s death in 2014.

Given that the plaintiff’s partner had no other relatives with a legitimate claim on her estate, Justice Kunc granted letters of administration to the plaintiff.

If you would like to discuss an inheritance dispute, please contact no-win, no-fee experts at Gerard Malouf & Partners Will Dispute Lawyers to help you begin your claim.

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