Legal Tip 351: Defacto Relationships, Death and Intestacy

Discussion in 'Wills & Estate Planning' started by Terry_w, 25th Jul, 2021.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Legal Tip 351: Defacto Relationships, Death and Intestacy


    It is very straight forward to work out if a person is married or not because marriages are registered.

    But with defacto relationships it is often very blurry when the relationship started and/or ended. This can have a huge impact on who gets the assets of the deceased person. This is especially the case where the person dies without a valid will – intestacy.


    Example

    Bart is worth a bit and starts some sort of relationship with a girl at some point in 2017. The parents don’t know the full details of when it started but think it was Oct 2017 that Bart became a defacto. Bart died in 2019.

    This would mean, under Victorian Law, that Bart was not in a domestic partner relationship as it had not been for 2 years before he died.

    Bart’s parents would get his entire estate if this was the case as there was no will.

    But Bart’s ‘lover’ said they had been in a relationship for more than 2 years as it started in Feb 2017.

    If this was the case the lover would inherit all of Bart’s estate.

    The court would have to look at all the evidence and make a decision.


    This example was based on a real case where the lover was deemed to not be a domestic partner.

    Re Gunn; Thomas v Gunn [2019] VSC 772 Re Gunn; Thomas v Gunn [2019] VSC 772 (25 November 2019)


    It is very straight forward to work out if a person is married or not because marriages are registered.

    But with defacto relationships it is often very blurry when the relationship started and/or ended. This can have a huge impact on who gets the assets of the deceased person. This is especially the case where the person dies without a valid will – intestacy.


    Example

    Bart is worth a bit and starts some sort of relationship with a girl at some point in 2017. The parents don’t know the full details of when it started but think it was Oct 2017 that Bart became a defacto. Bart died in 2019.

    This would mean, under Victorian Law, that Bart was not in a domestic partner relationship as it had not been for 2 years before he died.

    Bart’s parents would get his entire estate if this was the case as there was no will.

    But Bart’s ‘lover’ said they had been in a relationship for more than 2 years as it started in Feb 2017.

    If this was the case the lover would inherit all of Bart’s estate.

    The court would have to look at all the evidence and make a decision.


    This example was based on a real case where the lover was deemed to not be a domestic partner.

    Re Gunn; Thomas v Gunn [2019] VSC 772 Re Gunn; Thomas v Gunn [2019] VSC 772 (25 November 2019)
     
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  2. Julia139

    Julia139 New Member

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  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Yes that is a terrible story and outcome
     
  4. balwoges

    balwoges Well-Known Member

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    I will never come to terms or understand how someone who had a casual relationship can claim a de facto relationship and benefit from a will with the matter going to court and costing the beneficiary thousands of dollars in costs. The Court accepts the word of the claimant before the case proceeds and the lies only become apparent when evidence is produced and the claimant loses the case.
     
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  5. Colin Rice

    Colin Rice Mortgage Broker Business Member

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    .

    My theory is judges pass laws, government legislates them and lawyers enforce them. People stopped getting married to avoid the corrupt family law system so the answer is to create new laws to keep the circus going.
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Its because of the blurring between casual relationship and defacto. When does defactoness start?
     
  7. Colin Rice

    Colin Rice Mortgage Broker Business Member

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    Not sure if laws are state or federal, however, it can be considered a de facto relationship from day 1 of co-habitation, 6 months, and 2 years seem to be other important timeframes in eyes of family law.
     
  8. Joynz

    Joynz Well-Known Member

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    The Thomas v Gunn decision above hinged on a strict interpretation of 2 years, however the rules for superannuation are different - and the money has to be left to a dependent.
     
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  9. Colin Rice

    Colin Rice Mortgage Broker Business Member

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    I always thought it was min 2 years before family law applies, I was told by a lawyer it can be from day 1 in certain circumstances.
     
  10. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Succession is state law and the definitions will be different from Family law so whenever considering whether you are defacto or not it will depend on for what purpose.

    The case above was about a victorian succession matter where it all come down to the definition of 'partner' for intestacy law. this meant it come down to whether they were living together on a genuine domestic basis.
     
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  11. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    which includes a defacto spouse.
     
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