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.
