A recent case gives us an interesting look at de facto relationships and what can happen when people die without a will.
The case involved a woman who passed away in 2012, her surviving partner and her adult daughter. The partner alleged that he and the deceased lived together for three years in New Zealand, before he moved to Australia. The deceased intended to join him in Australia, but was refused entry because of her criminal record. Despite her remaining in New Zealand, he said that they continued to live in a de facto relationship for a further four years until she passed away.
Unfortunately the deceased had failed to sign a new will after revoking an earlier one, and therefore died intestate (without a valid will). Both the partner and the daughter were advised of this.
The daughter went on to obtain letters of administration (court orders granting her the right to deal with the estate) without the partner knowing. She had declared in the court documents that her mother was not in a de facto relationship when she died, and then proceeded to distribute the estate to herself and her brother’s trust.
Not surprisingly, a legal challenge followed. The partner sought a declaration that he was the deceased’s de facto partner at the date of her death, claiming that he had continued to support her financially and emotionally, and spent time with her in New Zealand. The daughter denied this, but by the time of the hearing she no longer wished to take part in the proceedings. The Court considered admissions she had made throughout the proceedings, including:
- That her mother had expressed a wish to move to Australia;
- In the months leading up to her death, her mother had made a video expressing her love for her partner;
- The sworn statement the daughter had made to a police officer shortly after her mother’s passing, in which she stated that the man had been her mother’s long-term partner for over five years and that they talked every day;
- An email the daughter had instructed a lawyer to send, which referred to the man as “her mother’s partner”.
There was also evidence from the deceased’s mother about the relationship, including that the deceased had been pursuing a special visa to enable her to move to Australia, that they continued to have a sexual relationship when the partner visited New Zealand, and that she was financially dependent upon him.
The Court found in favour of the partner, and was satisfied that the de facto relationship was continuing at the time of the woman’s death. This meant that the surviving partner could make a claim in respect of the estate.
As this case illustrates, defining a “de facto relationship” is not as simple as asking whether two people are living under the same roof. Given the property consequences which can flow from such a relationship, it is important to obtain legal advice if you are unclear of your position.
It also highlights the importance of having a will in place. If the deceased had signed a new will, court proceedings may not have been necessary.
If you would like any further advice or assistance, please do not hesitate to contact our Wellington based family lawyers Debbie Dunbar, email firstname.lastname@example.org, phone (04) 495 9940 or Maretta Twentyman, email email@example.com, phone (04) 495 8918.
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