In 2015 the deceased died suddenly at the age of 55 without leaving a Will. The deceased was survived by three siblings. The applicant claimed that at the time of his death, she had been in a continuous 12-year de facto relationship with him. Pursuant to the rules of intestacy, the deceased’s surviving siblings would be entitled to the whole of his estate, unless the applicant could establish that she was the deceased’s de facto spouse.
The Court needed to determine whether the applicant was a “spouse” of the deceased as defined under legislation. The applicant claimed she was in a de facto relationship with the deceased that “has been in existence for a continuous period for at least two years” at his death. The Court found that the applicant did not qualify in the last five years of the deceased’s life as his de facto partner because she had not been in a de facto relationship with him from 2010. The applicant had quite strong financial dependence upon the deceased during the de facto relationship until 2010 with the Court describing their existence as one of a shared household up until that time, but after that the nature of the deceased’s visitation to her was as a neighbour and former de facto partner and nothing more.
The applicant sought to argue that she was an eligible person entitled to make a claim on the deceased’s estate because she was at a particular time “wholly or partly dependent upon the deceased person” and was at the time of her dependence, or at other times “a member of a household of which the deceased person was a member.” The Court was satisfied that the applicant qualified as an eligible person to make a claim for family provision on the estate on the basis of a six year long relationship. The Court then had to determine whether, having regard to all the circumstances of the case “there are factors which warrant the making of the application”.
The Court found the deceased chose to allow the applicant a place in his life. “He clearly consented to her organising social functions with him and having some degree of a life together”. “She was more than just an ex-partner to him and…for this reason there are factors warranting” the making of provision of $75,000 in the applicant’s favour from the estate. The sum was fixed “partly to take into account the fact that [the applicant] did benefit financially in a substantial way throughout her relationship with the deceased and he was quite generous towards her”.
This case involved significant uncertainty, stress and cost for the parties involved when the deceased passed away and serves to highlight the importance of not leaving legal matters to chance. At Everingham Solomons we have the expertise and experience to assist you in making a Will because Helping You is Our Business.
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