Intestate case rules that the deceased was in a domestic partnership

Date: Oct 21, 2019

A recent intestacy case in NSW saw a plaintiff making an alternative provision claim on the estate of the deceased based on the grounds that the pair were in a domestic partnership. The Supreme Court of NSW needed to determine whether or not the plaintiff was classed as a ‘spouse’ of the deceased under Section 111 of the Succession Act 2006 (NSW). Let’s see how this case unfolded.

The background of the case

The intestate individual passed away in June 2017, leaving property in Cammeray, NSW. In February 2019, the Supreme Court appointed an interim administrator for the deceased. This individual swore an affidavit deposing that the net distributable value of the departed’s estate was valued at more than $3.5 million (less costs). The administrator further claims there is no one eligible to make a claim for provision from the estate other than the plaintiff.

In August 2017, the plaintiff (then the ‘first applicant’) made a claim of interest to the Equity Division of the Supreme Court as a person who was in a domestic partnership with the deceased before her death. As a surviving spouse (providing the departed left no specific reasons not to), this means the plaintiff is entitled to the whole estate on intestacy. Shortly afterwards, the defendant (first the ‘second applicant’) also filed a caveat claiming an interest as the deceased’s nephew (the child of the deceased’s sister).

The first applicant, in February 2018, claimed an order for a grant of letters of administration in respect of the deceased’s estate. The second applicant then filed that he and several other parties are nieces or nephews of the deceased and therefore require a grant of letters of administration in respect of the deceased’s estate as well.

What was the outcome?

NSW’s Succession Act 2006 determines that a de facto relationship is defined as two spouses living together in a relationship. Case law establishes, however, that the two people don’t need to reside with one another full time to be considered to be ‘living together’.

The Supreme Court decided as fact that the deceased and the plaintiff had a relationship that lasted for over thirty years, despite the pair owning and residing semi-regularly in separate properties.

Ultimately the Court concluded that the plaintiff was definitively the deceased’s spouse in the requisite statutory sense in the two years prior to her death. Accordingly, as she died intestate, the plaintiff was ruled to be entitled to the entirety of the departed’s estate, with no other provision claims permissible.

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