Unclear relationship leads to issues in applying for letters of administration of an estate

Date: Jan 28, 2015

Individuals will often need to prove they are in a de facto relationship with a deceased person in order to progress with a family provision claim. However, there are other times when this relationship will need to be demonstrated in front of the courts, when applying for letters of administration for example.

This issue was recently seen by the NSW Civil and Administrative Tribunal, which was required to determine whether a woman's claim to be the de facto partner of the deceased was credible. 

The woman took legal action against the Registrar of Births, Deaths and Marriages, after she was not listed on the deceased's death certificate, which she required to apply for letters of administration. The man was also in the process of separating from his wife, however the two had yet to be legally divorced before his death.

In making the initial decision, the Registrar had found insufficient evidence that the couple achieved the standard needed for a de facto relationship.

In particular, the couple had not been cohabiting for a significant length of time - which the courts usually require in order to meet this condition. The deceased passed away less than three months after the pair began cohabiting. Some legislation requires that cohabitation exist for at least two years before it will be legally recognised.

One of the factors the Tribunal looked at was the reputation and public aspects of the relationship.  The relationship was not known to some members of the deceased's family and friends.

While the Tribunal agreed that the relationship was very new and not widely known, it was still determined that the pair had been in a de facto relationship at the time of the deceased's passing. In particular, the Tribunal was satisfied that the woman's testimony and evidence was sufficient to demonstrate that a de facto relationship existed - part of which had not been originally presented to the Registrar.

As a result of this evidence, the Registrar's decision was overturned, and the woman was declared to be the deceased's de facto partner.

With de facto partners required to meet specific criteria, especially around the administration of an estate and family provision claims, this case highlights how important it can be to demonstrate a relationship existed.

For more on how to demonstrate a de facto relationship does exist, and to begin the process of making this claim, make sure to discuss your options with a wills and estates lawyer.