Please note: This is a fictionalised version of a real outcome in the Supreme Court of Victoria.
The purpose of the #contestawillwithrobinsongill series is to educate the public about the risks, opportunities and realities of disputing wills and estates in plain English.
How will the Court determine who is the correct person to administer an estate when a person dies intestate (i.e. with no will)?
Sebastian and Ava met at one of Ava’s art exhibits three years ago
They started dating and things had progressed so well that they had begun discussions about getting married and living together. Sebastian lived in an apartment he owned that was a walking distance away from his CBD office, where he worked as a financial analyst. Ava also owned her own apartment and art studio in Malvern.
Their plan was to wait until Ava finished her Master of Fine Arts - which only had one semester left - and then look for a place to begin the next stage in their relationship.
But one day, everything changed when Sebastian tragically, and unexpectedly, passed away.
Passing Away Intestate – Without a Will
Unfortunately, Sebastian did not have a will when he passed (known as ‘dying intestate’). His mother applied to the Court for a grant of letters of administration upon intestacy on the basis that Sebastian didn’t have a domestic partner (nor any children) and as such, she was the appropriate person to do so. On this basis, she and Sebastian’s father were each entitled to one half of their son’s estate pursuant to the intestacy laws.
Ava sought legal advice in relation to her position, and subsequently made an application to the Court seeking orders revoking the grant obtained by Sebastian’s mother, in order to obtain a grant on the basis that she was Sebastian’s domestic partner.
How did it play out?
How does The Court define a ’Domestic Partner’?
In this case, the Victorian Court outlined the relevant considerations in relation to the definition of an "unregistered domestic partner" for the purposes of obtaining letters of administration when someone dies intestate (Sebastian).
These considerations are also relevant to those who may seek to make a claim for further provision from a deceased’s estate on the basis that they are a domestic partner.
The relevant legislation required Ava to show that she and Sebastian were living together as a couple on a genuine domestic basis at the time of his death and that they did so continuously for a period of at least two years immediately before his death.
If Ava and Sebastian had a child together who was under the age of 18 years at the time of Sebastian’s death, she would not have to show that the time they had lived together on a genuine domestic basis had been for the two year period prior to his death.
In determining whether someone is an unregistered domestic partner, many factors are to be considered including but not limited to:
- the degree of mutual commitment to a shared life;
- the duration of the relationship;
- the nature and extent of common residence;
- whether or not a sexual relationship exists;
- the degree of financial dependence or interdependence,
- arrangements for financial support between the parties;
- the ownership, use and acquisition of property;
- the care and support of children;
- the reputation and public aspects of the relationship.
In this particular case, it was found that the applicant, Ava, was not the “domestic partner” for the purposes of the relevant legislation and was not entitled to apply for letters of administration on Sebastian’s behalf.
Some factors that were considered in this case were:
- On the evidence, it could not be shown that Ava and Sebastian had lived together on a genuine domestic basis for the two years immediately prior to his death;
- Ava and Sebastian never maintained a joint bank account;
- There was no evidence that they were financially interdependent.
Key takeaways
Doctors say that prevention is always better than cure. Unfortunately, this issue could have been avoided if Sebastian had a will.
Some key takeaways from this case are:
- If you are in a relationship and plan to make a long-term commitment to your partner, there are legal aspects you have to prioritise to protect yourself and your partner to make sure they are provided for in the event of your death. Including your partner in the will is a fundamental starting point.
- In this case, the Court made it very clear that an intention to marry wasn’t enough to warrant Ava being considered a "domestic partner". In the same manner, it wasn’t enough to convince the Court of their intent to live together after marriage.
- Ensure to advise financial institutions and other relevant organisations of any change to your personal situation: change in address, contact details and of course, your next-of-kin. This includes formally changing your residential address on your driver’s licence, utility bills, etc. Where appropriate, register your relationship with your relevant Births, Deaths & Marriages state authority.
Conclusion.
If you are in a relationship and plan to make a long-term commitment to your partner, make sure that you are clear about the nature of the partnership and arrangements. Then speak to a lawyer about formalising the relationship from a legal perspective.
It may feel ‘clinical’ or ‘unromantic’ to consider the legalities of a relationship, but some simple steps such as making a will may solve a lot of future problems in the event of one person unexpectedly passing.
How can I learn more?
Rachael has helped a number of individuals successfully dispute wills that they have been unfairly left out of or left inadequate provision. She also has experience in defending claims made by individuals against deceased estates.
Some other resources you
might find helpful
‘Fishing expeditions’ to Medicare Australia: Reconciling the Victorian approach in Carter v Australian Air League and Semi v Victorian WorkCover Authority
In Carter (a pseudonym) v Australian Air League Incorporated & Anor, the Supreme Court of Victoria outlined the principles that apply in relation to subpoenas seeking records from Medicare.
Estate Planning Document Health Check
If you have not reviewed your Will and Powers of Attorney recently, you may want to review these documents to ensure that they are up to date with your current circumstances.
Supportive Powers of Attorney
If you or someone you care for requires assistance in understanding, making or executing personal and financial decisions, then you may want to prepare a Supportive Power of Attorney.