DeFacto Relationships and Inheritance Disputes
Inheritance disputes can often involve a person claiming to be a de facto partner of the deceased. Establishing the existence of a de facto relationship can have significant benefits in the context of a deceased estate because, under NSW intestacy law, this generally means the surviving de facto partner inherits the bulk, if not the whole, of the deceased’s estate.
Proving a de facto relationship involves providing detailed evidence about the nature of the relationship, including things like: whether there was one common residence, whether there were joint finances, whether they owned property together, whether the parties to the relationship were viewed as a couple by family and friends, whether they had children together, whether the parties to the relationship shared the same bedroom and had a sexual relationship.
In May this year, the High Court handed down a decision in the case of Fairbairn v Radecki. This was a family law case which had to determine the meaning of the ‘breakdown of a de facto relationship’ for the purposes of making a family law property settlement where dementia meant that the de facto wife had had to be placed in to care. Were the parties separated in those circumstances? Although it was a family law case, the decision had important ramifications for estate disputes as well.
The New South Wales Trustee & Guardian appeared in Court as the Case Guardian for the de facto wife and sought orders for the sale of a home in which the de facto husband lived so as to pay for the wife’s care accommodation. The de facto husband argued that the Court lacked jurisdiction as the parties had not separated. The trial judge found that the relationship had indeed broken down, after examining the conduct of the parties.
The Court found that it was not simply a matter of looking at where the parties to the relationship lived. In order to determine whether a de facto relationship continued, the Court had to consider all the factual circumstances of the relationship to determine whether the parties were committed to sharing a life together. In the family law context, a de facto relationship could exist if there was a shared lifetime commitment by the parties, despite the fact that they were no longer living together, either voluntarily or involuntarily (for example, where one party was required to move to an aged care residence).
In this case, the Court found that the de facto husband’s conduct was contrary to the wife’s needs as her health began to fail and he took advantage of that. This conduct included the entry into a new enduring power of attorney that favoured his rights over hers; the husband instructing solicitors to prepare an updated will on terms vastly more favourable to him; the husband’s unwillingness to cooperate with the de facto wife’s children in the administration of her affairs and his persistent refusal to permit the Trustee to sell the home while neglecting to pay any of wife’s care costs, thus depleting her estate.
As always, each case depends on the facts and no two cases are the same. Call us for advice if you find yourself in a similar situation, either in an estate or a family law context.
