No Will – father died intestate & claim by girlfriend to be de facto spouse

No Will – father died intestate & claim by girlfriend to be de facto spouse

In a recent case we were retained to advise a son whose father died suddenly leaving no will. Many years before, the father and mother had divorced in acrimonious circumstances and the son had lived with his mother. The son had intermittent contact with his father including living with him after leaving high school. The father had not remarried although had established a long-term relationship with a woman, who the son described as a girlfriend.

The son was not advised of his father’s death and not told of the funeral. The girlfriend made an application for Letters of Administration to be granted to her and claimed to be the de facto spouse of the deceased. If this claim was accepted by the Supreme Court she would be entitled to receive the same share in the deceased’s estate as if she was his wife.

Our client was adamant that the girlfriend was not his father’s de facto spouse and instructed us that both his father and the girlfriend had and lived in their own homes as single people, but went out together. The fact that his father had not married the girlfriend, or lived with her in the same house or made a will naming her as a beneficiary was further proof to our client that his father did not regard the girlfriend as a de facto spouse.

The contest in this disputed estate was between the only son and the alleged de facto spouse. If the son could disprove the girlfriends claim to be a de facto then he would inherit all the estate and the girlfriend would receive nothing. If however the claim of de facto spouse was upheld the deceased’s estate would be divided in accordance with established rules regarding people who die intestate. We agreed to act for the son on the basis that we would not charge any fees until the conclusion of the court case.

The Wills Probate and Administration Act rules provide that if a person does not leave a will, that is dies intestate, the property is to pass to the deceased’s next of in order of statutory priority. This is:

  1. Spouse and no children – all to spouse
  2. Spouse and children;
    1. if estate is less than the statutory amount ($150,000 but subject to legislative amendment from time to time) – the whole to the surviving spouse
    2. if estate exceeds the statutory amount – spouse receives the first $150,000, all household effects and one half of the balance of the estate. The balance of the estate goes to the children. The spouse has the option of taking the matrimonial home in full or partial satisfaction of their interest
  3. Children but no spouse –to children equally
  4. No spouse & no children – to the parents of the deceased equally
  5. No spouse and no children, no parents – the first to fall in the class of persons as follows;
    1. Brothers & sisters
    2. Half-brothers & half-sisters
    3. Grandparents
    4. Uncles and aunts resulting from the remarriage of the deceased grandparents
    5. If no one else the State of New South Wales

What is often overlooked is that if the deceased’s children or brothers and sisters otherwise entitled have themselves died but have left children then those children will take equally the share their parent would have received.

In this case the girlfriend’s claim was challenged and our firm retained one of Sydney’s leading Senior Counsel to represent the son despite our client being of modest means, as we negotiated with the barrister to wait for his fees until the funds of the estate were made available.

The issue for the Court to determine was what were the deceased’s living arrangements having regard to the evidence and affidavits filed by each party. Each case turns on its own facts and evidence. The Courts have held that it is possible to have a bona fide domestic relationship as a de facto spouse without living together. Although living together is a usual and expected feature of a de facto relationship it is not determinative of the issue with the Court looking to the whole matrix of facts and circumstances of the particular situation to determine what does and does not constitute a de facto spouse.

However, in this case, consent orders were able to filed as a result of the evidence we prepared, including affidavits from our client and from people who had attended the deceased’s home and observed the relationship between him and the girlfriend. This resulted in the estate saving considerable legal costs, as the case did not go to a full hearing.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.