What happens when an ex-partner claims on an estate?

18 September 2023

We recently acted for a mother of a man in his late 20s who sadly lost his life.

The loss of her son was obviously heartbreaking, and in the wake of his passing she also had a legal battle on her hands.

The young man did not have a Will. Whilst his estate was relatively small, there was a death benefit payable from his superfund.

Because he did not have a Will, the young man’s mother had to apply for authorisation to administer his estate through what is called ‘letters of administration on intestacy’. However soon after, the deceased’s former partner lodged a caveat against the application and filed her own application for letters of administration on intestacy on the basis that she was the spouse of the deceased.

The mother advised us that while her son had been in a de facto relationship with the former partner for almost 10 years, the relationship had ended some six weeks prior to his death.

Although the relationship lasted for a substantial period of time, the couple had not pooled their resources. They each maintained separate bank accounts and had separate ownership of household furniture, vehicles and other items. Each person contributed to the household expenses including rent, groceries and utilities. There had been difficulties in the relationship for a number of years which led to the couple ultimately cutting ties about six weeks prior to the deceased’s death.

The matter ended up in court to determine whether the ex-partner was legally considered the de facto partner of the deceased at the date of death.

We worked with the deceased’s mother to prepare a substantial amount of evidence, including text messages, phone conversations with other parties, end of lease documentation, bank statements, dating profiles and a sworn statement the ex-partner had made to the police.

The ex-partner argued that while there was a breakdown of the relationship, she never intended to effect a permanent separation from the deceased and there was an intention to repair the relationship in time. Unlike our client, the ex-partner provided the court with little corroborating evidence. Her case was based, primarily, on her own testimonial evidence.

Ultimately, the court ruled in favour of our client. While the court accepted that the ex-partner and the deceased were in a de facto relationship for a significant period of time, the court rejected the ex-partner’s assertion that the de facto relationship was current at the date of death.

Determining a de facto legally

In cases like this, the definition of a de facto partner is under the microscope. A de facto partner falls under the definition of a spouse pursuant to the Uniform Civil Procedure Rules 1999 and the Succession Act 1981.

Section 32DA of the Acts Interpretation Act 1901 defines a de facto partnership as a couple who are living together on a genuine domestic basis but who are not married to each other or related by family. The following factors are relevant in determining whether two persons are living together on a genuine domestic basis:

• the nature and extent of their common residence;
• the length of their relationship;
• whether or not a sexual relationship exists or existed;
• the degree of financial dependence or interdependence, and any arrangement for financial support;
• their ownership, use and acquisition of property;
• the degree of mutual commitment to a shared life, including the care and support of each other;
• the care and support of children;
• the performance of household tasks;
• the reputation and public aspects of their relationship; and
• any other the circumstances relevant to the relationship.

Importantly, pursuant to the Succession Act, the relationship must be continuous for at least two years up to and including the date of death.

We were glad to be of some support to our client through one of the most troubling times of her life, and to reach a successful outcome in court. If you are dealing with an issue involving the estate of a loved one that may need to go to court – our Litigation team is here to guide the way. Contact us today to learn how we can help you.