Probate for a De Facto
30 January 2019
Fulltime Cohabitation not a requirement of a De Facto Relationship.
Under NSW succession law, when a person dies without making a will, their spouse or domestic partner (as well as children) is entitled to inherit the whole of their estate.
To qualify as a de facto spouse the Court must consider any or all of the following factors, as specified in the Interpretation Act 1987:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The decision of Lindsay J in the matter of Estate Pamplin; Irwin v Pamplin4, confirmed the standards that must be met to qualify as a de facto spouse under the Family Law Act 1975. This firm acted for the plaintiff in this matter.
In this matter the plaintiff sought the administration of the deceased’s entire estate on the grounds that she was the surviving de facto spouse of the deceased. The defendant, the mother of the deceased, claimed the relationship between the deceased and plaintiff had concluded many years prior, and that she was entitled to the entire estate instead.
The question at hand was whether the plaintiff had been in a continuous relationship with the deceased for the 2 year period preceding his death.
The defendant asserted the plaintiff and deceased lived in separate houses (but on the same property) and as such could not be de facto partners. The plaintiff asserted she spent time in each of the dwellings.
The plaintiff asserted she performed all the deceased’s domestic duties which was not challenged. She also proved the existence of the relationship through evidence that included personal, medical, financial, legal and insurance documents where the defendant had nominated the plaintiff as his “de facto wife”.
In fact, the deceased had filed affidavits with the Supreme Court some 5 years prior to his death in an unrelated matter stating the plaintiff was his de facto. Those affidavits were constructively prepared by the same solicitor as that who acted for the defendant. Shortly before the deceased’s death he obtained life insurance where he declared the plaintiff to be his de facto wife. An unsigned will was also prepared by the deceased appointing the plaintiff the sole beneficiary of his estate.
Further, the fact the plaintiff’s belongings including photographs and toiletries were found in the deceased’s house, was also evidence of their commitment to a shared life together during the preceding 2 year period.
The Court declared the plaintiff to be a de facto spouse.
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1Succession Act 2006 (NSW) s 111.
3 Interpretation Act 1987 (NSW) s 21C.
4 Estate Pamplin; Irwin v Pamplin  NSWSC 1447.