Woman claims to be de-facto partner of man who died intestate

Published 04 Jul 2017

People who pass away without writing a will are ruled to have died intestate. This means that their assets are distributed according to a formula, which typically results in the estate going to a spouse, de-facto partners and/or children.

However, this process was recently complicated when a woman pursued a family provision claim against a man who she said was her de-facto partner at the time of his death.

The man, who was 55 years old when he died in 2015, had no wife or children but had been in a relationship with the plaintiff at some point during his life.

Justice Michael Slattery of NSW Supreme Court was asked to rule on whether the pair had been de-facto partners when the deceased died and for the two years leading up to his death.

Was the plaintiff a de-facto partner?

If the plaintiff were considered a de-facto partner, she would receive the entirety of the deceased’s $760,000 estate through intestacy rules. Otherwise, his assets would be distributed equally among his three surviving siblings.

The defendant, the deceased’s brother, acknowledged that the plaintiff had been in a relationship with his sibling, but the parties disagreed as to when they ceased to be a couple.

The plaintiff claimed their relationship constituted a de-facto partnership up until the day the deceased passed away, while the defendant argued they had broken up and only remained friends from roughly 2009 onwards.

A key factor that added to the complexity of the case was that the plaintiff and the deceased lived close to one another and spent a significant amount of time together up to the day the latter died.

The judge’s decision

Justice Slattery ruled that the pair were not in a de-facto relationship at the time of the deceased’s death and had not been a couple for approximately six years.

Several pieces of evidence seemed to support this interpretation of events, including reliable witnesses who claimed the deceased had ended the relationship due to the plaintiff’s verbal and physical violence towards him.

The deceased continued to help the plaintiff – particularly with house maintenance – and they remained close, but the judge said this did not constitute a de-facto partnership.

However, under the Succession Act 2006 (NSW), someone who was partly or wholly dependent on the deceased and lived within the same household as them can make a family provision claim.

As the plaintiff had also pursued a claim under this part of the Act, Justice Slattery ruled that she should be awarded $75,000 from the deceased’s estate as a former dependent.

Are you unsure whether you’re eligible to make a family provision claim? Please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.

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