• Friend or Spouse?

    Posted on February 18, 2014 at 9:39 am under Family Law category.

    ?A recent NSW Supreme Court decision brings to light not only the importance of having a valid will, but also the effect that your relationship with others can have? should you die intestate (without a will).

    It should be noted that whilst New South Wales and Queensland law in regards to intestacy is similar, it is not the same, and this case should only be interpreted as an example of the importance and value of a valid will.

    In the case of the NSW Trustee and Guardian v McGrath, the court was asked to determine whether Maurice McGrath was a de facto husband of the deceased, Ethel Clarke. In this case the deceased died intestate, and should Maurice be found to be Ethel`s de facto, Maurice would inherit a significant part of the estate.

    In its determination, the court looked to a number of factors which included the fact that both parties did not live together, but spent a significant amount of time in each others company and would regularly stay as guests in each others homes, and the expenditure of funds by Maurice in support of Ethel and her care in the weeks leading up to her death.

    The court was satisfied that Maurice could be considered the de facto husband of the deceased. In the judgment, the judge however admitted that it was a borderline case.

    Ultimately we have no idea whether the deceased would have approved of the judgment and the distribution of her assets, such is the danger of dying without a will.

    Some of the factors in Queensland to be considered a de facto couple for the purposes of intestacy are that you must have lived together on a genuine domestic basis and the relationship must have been in existence for a continuous period of at least two years ending in the deceased`s death.

    In New South Wales, a de facto for the purpose of intestacy is generally considered as two persons having a relationship as a couple living together that are not married or related.

    In both Queensland and New South Wales the courts are given some discretion in the determination, and may have regard to many factors such as the duration of the relationship, the degree of financial dependence and financial support, property ownership and the degree of mutual commitment to a shared life.

    Whilst some de facto relationships can be considered straightforward and easily definable, human relationships do not always lend themselves to be defined easily, and may cover a wide spectrum. One thing however, is certain in this case, that should the deceased have had a valid will, the division of her estate would have been much simpler and in consideration of her wishes. However, if it was a genuine de facto relationship and no provision was made for Maurice in Ethel`s will then Maurice could still have bought a Family Provision Application.