Under the Succession Act 1981 (‘the Act”), de facto partners have the same rights as married spouses in relation to the inheritance of assets. However, issues can arise where other relatives or family members dispute the existence of that de facto relationship or argue that the relationship had ceased prior to death. This article touches upon some of the potential implications that can arise in relation to a deceased estate when the existence of the de facto relationship is in dispute.

In such cases where the status of the relationship is questioned, the Court conducts a thorough examination into every aspect of the couple’s lives in order to determine whether or not a de facto relationship existed for a continuous period of at least two years ending on the date of death.

In determining whether a de facto relationship exists, the Court Will look at the following factors:

• the length of the relationship;
• the nature and extent of common residence;
• whether there is, or has been, a sexual relationship;
• the degree of financial dependence or interdependence, and any arrangements for financial support;
• the ownership, use and acquisition of property (including property owned individually);
• the degree of mutual commitment to a shared life;
• whether they care for and support children; and
• the reputation and public aspects of the relationship.

Consider for example a daughter whose mother died suddenly leaving no Will. The mother and father had divorced many years earlier and the daughter had lived, for the most part, with her father. The mother had not remarried although had established a long-term relationship with a man, who the daughter describes as a boyfriend. The mother and the boyfriend lived in their own homes as single people, but went out together. They had done this for many years.

The daughter is not advised of her mother’s death and not told of the funeral. The boyfriend proceeds to make an application for a Grant of Letters of Administration to be granted to him and claimed to be the de facto spouse of the deceased. If this claim is accepted by the Supreme Court he would be entitled to receive the same share in the deceased’s estate as if he was the deceased’s spouse. That is, under the rules of intestacy, the de facto spouse would receive the deceased’s personal effects, a statutory legacy of $150,000.00 and an equal share of the residue. The balance of the residue would go to the daughter.

However, if the daughter could disprove the boyfriend’s claim that he was the deceased’s de facto then the daughter would inherit the entire estate and the boyfriend would receive nothing.

The Courts have held that it is possible to have a bona fide domestic relationship as a de facto spouse without living together. Although living together is a usual and expected feature of a de facto relationship it is not determinative of the issue with the Court looking to the whole matrix of facts and circumstances of the particular situation to determine what does and does not constitute a de facto spouse.

Section 15B of the Act provides that when a de facto relationship ends gifts made to the former de facto partner in a Will are revoked. Essentially this means that the effect of the end of a de facto relationship is the same as a divorce or the end of a civil partnership. This revocation applies unless the Will-maker expresses a contrary intention in their Will. However, the issue is that whilst the dissolution of a legal marriage is clear cut the same does not necessarily apply to a de facto relationship because there is no divorce decree to prove the end of the relationship. If other relatives or family members argue that the relationship had ceased and therefore the gift under the Will revoked, then the onus is on the propounder to positively prove that the defining characteristics of a de facto relationship had not come to an end.

These issues were considered most recently by the Queensland Supreme Court in the case of the Estate of HRA Deceased [2021] QSC 29.

In this case, the deceased and the respondent were in a de facto relationship for a number of years. The deceased had no children. The deceased’s estate was worth approximately $1.6 million dollars at the time of his death.

Prior to the deceased’s death, the respondent moved from their shared residence to a retirement village. The deceased later moved to a nursing home. The deceased had prepared a handwritten, unwitnessed document dated 12 February 2010 and described as the deceased’s “only Will and Testament”. This document was found in the deceased’s residence. Under the terms of this document, the deceased left his residence to the respondent.

The respondent claimed that she was still in a relationship with the deceased notwithstanding they lived in separate accommodation. She filed an application seeking a declaration that she was the de facto spouse of the deceased and was entitled to his residuary estate on intestacy, that Letters of Administration be granted to her as Administrator or that the original handwritten document dated 12 February 2010 formed the Will of the deceased and that the deceased’s residence be given to her.

The applicants, the deceased’s niece and nephew, applied for Letters of Administration on intestacy of the estate of HRA deceased, to be granted to them as Administrators arguing that the respondent and the deceased were not in a de facto relationship for a 2 continuous period of at least two years prior to his death.

The Supreme Court was effectively asked to decide:

• whether the de facto relationship between the deceased and the respondent continued after they ceased living in the same residence; and
• whether the deceased’s letter amounted to an informal Will.

A decision by the court that a de facto relationship existed between the deceased and the respondent during the whole of the two-year period immediately before the deceased’s death would result in the respondent being entitled to the estate. (Either the gift of residence under the informal Will document, (if held valid), or the entire estate, as per the rules of intestacy).

If the court decided that a de facto relationship between the deceased and the respondent did not exist during the whole of the two-year period immediately before the deceased’s death then the respondent would not be entitled to any benefit from the estate. The estate would be shared by the applicants, namely the deceased’s niece and nephew.

The court took the view that the respondent had the capacity to maintain contact/involvement with the deceased but failed to do so after 2013. The court commented that even if one party in a relationship loses the capacity and ability to communicate meaningfully, the other party can still show commitment to the relationship by actions such as visits, letters, cards, flowers and gifts, arranging to receive updates from nursing staff and involvement in decisions about care.

In this case, the court concluded that the respondent failed to establish that she was in a de facto relationship with the deceased for a continuous period of at least two years ending on his death. With that conclusion, the respondent lost her claim for the deceased’s entire estate as his de facto partner.

The court did not deal with the issue regarding the deceased’s informal Will because even if the document was held to be a valid Will, any gift to the respondent under the document would have been revoked pursuant to section 15B of the Act.

This case highlights the need to maintain sufficient elements of the de facto relationship until the death of the partner to preserve that entitlement, whether or not the deceased partner had a Will. If you are in a de facto relationship and you live separately from your partner, it is critical that you continue to conduct yourself in a way that preserves your status as a de facto partner.

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