Intestacy and Same-Sex Couples NSW

Intestacy and Same-Sex Couples

The negative consequences of not making a will

If you die without leaving a will, you die intestate and your estate will be distributed according to the Succession Act 2004 (NSW) which sets out a statutory formula. Normally, if you die leaving a spouse or children, they will take priority when the estate is distributed by the Court.  Although de facto partners are entitled to a share in an intestate estate, the relationship must have been ‘in existence for a continuous period of 2 years’.

In a recent case in which Sydney Wills Lawyers acted in, we needed to prove that our client was a de facto partner of the deceased, which would mean that he would be entitled to the entirety of intestate estate as the deceased had no children. The deceased died leaving approximately 3 million dollars in assets.

The deceased’s brother brought a claim against our client, arguing that he should be entitled to his deceased’s brother assets because the deceased and our client had not been in a de facto partnership for a continuous period of 2 years, and that he as the deceased’s only brother should take the entire estate under the rules of intestacy.

As the deceased and our client were in a same-sex relationship and therefore not legally entitled to marry, our client had to put forward evidence and prove that he was the de facto partner of the deceased at the time of death.

The Court will take into account various factors in determining whether a couple was in a domestic partnership including financial contributions, shared residence, length of the relationship and non- financial contributions. Despite the fact that our client and the deceased were not always living together in one residence, the Court was not prevented from determining they were in a de facto partnership. We were able to present evidence that our client and the deceased lived together in two residences during their relationship.

Sydney Wills Lawyers,  were able to negotiate a very favourable outcome for our client where he would receive the majority of the assets of the deceased and would be recognised at law that he was the de facto partner of the deceased without having to go to Court. This case highlights the importance of making a will in order for your assets to be distributed according to your wishes after death. In the above case, if the deceased had a made a will leaving his assets to our client, then our client would not have had to prove that he was the de facto partner of the deceased and be subjected to attacks on the nature of his relationship and affection for the deceased by the brother’s lawyers.

It is very important that every person makes a will, and continues to update and review their will to reflect changes in their personal circumstances. These changes may include the birth of a child, marriage, divorce, and changes to financial circumstances to name a few.

Sydney Wills Lawyes are expert wills and estates lawyers and the principal Graeme Heckenberg has over 25 years’ experience in this area of law. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9221 2779 or email info@hecken.com.au to make an appointment with our expert legal team.

Office are located in Sydney, CBD and conviently located close to public transport!