Dying intestate in a de facto relationship can create problems

Date: Jun 16, 2015

Dying intestate can cause a wide range of problems for friends and family, especially if the deceased was in a de facto relationship. A lack of estate planning means that the decision as to who receives which assets is taken out of a person's hands and is instead dealt with using an administrator appointed by the Supreme Court of New South Wales.

De facto relationships are especially difficult to take into account, not least because the two parties never formally finalised their partnership. As a result, it is not always easy to prove that the relationship existed, or that the remaining partner would have been entitled to the estate.

This issue recently arose in the Supreme Court of New South Wales. The deceased passed away in June 2013 without leaving a valid will. A man claiming to be the deceased woman's partner said he was in a de facto relationship with the deceased for two years before her death, therefore making him entitled to her estate under the Succession Act 2006 (NSW).

However, the administrator of the deceased's estate denied that the relationship had been continuous for two years, as would be required under the legislation. In fact, the administrator argued that there may not have been any de facto relationship at all.

After weighing up the evidence, the judge was unable to conclude that the man was in a relationship with the deceased at the time of her death. He was not found to be living with her around this time, which the court decided meant that he was not a person who she was living in close personal contact with.

Instead, it is likely that he had visited her home in Paddington on several occasions - and may even have stayed overnight - but there was insufficient evidence to suggest he had been living there.

The judge concluded: "That the deceased did not inform any person of the alleged relationship with the Plaintiff does not suggest to me that he had the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased."

The man was therefore denied any claim on the intestate's estate. This illustrates just how important it is to have a valid will in place, especially for anyone in a de facto relationship. Engaging in an estate dispute can be a time consuming process, which is why it pays to get the necessary documentation in order sooner rather than later.