Probate and Estate Administration: Successful Challenge to Deceased Estate from Secret Domestic Partner

Deceased Estate in SA

A recent court decision in Victoria (Estrella v McDonald) is one of Australia’s first reported judgments resolving a claim for family provision involving a same-sex relationship.

The claimant said that he and the deceased had been in a secret de-facto relationship for 30 years, after they met in 1978 when the claimant was 17 and the deceased was 51.

The claimant said that he and the deceased had commenced a sexual relationship and that he had moved away from his family in the Philippines to live with the deceased’s family for several years. During the deceased’s final years, the claimant was living overseas.

During his life, the deceased had denied that the relationship was sexual in nature as he had apparently been embarrassed to publicly or openly acknowledge the relationship, for fear that it may not be accepted by their families or community.

The deceased had made no provision for the claimant in his Will, which solely benefitted the deceased’s children who defended the claimant’s allegations on the basis that their father and the claimant were “just friends” and that the claimant lived in their home as a boarder.

Genders and Partners | Probate and Estate Administration - Lawyer Adelaide

Probate and Estate Administration Adelaide: Some Interesting Cases

Estate Planning: Some Interesting Cases

Hornby v Cavenagh

Supreme Court of NSW

This was a claim under the New South Wales equivalent of the Inheritance (Family Provision) Act. The plaintiff was a niece of the deceased and sought to show that she was an eligible person to make a claim under the Act. To satisfy the requirement of an eligible person, the plaintiff had to show that there was some dependency on the deceased, and that she was a member of the deceased’s household.

Although the plaintiff had resided in the same household as the deceased for four years during the 1980s and was partly dependent on the deceased in this time, the relationship in the last 12 years of the deceased’s life was not close.

Intestacy: How Property is Distributed without a Will

When a person dies without a Will, this is known as dying “intestate”.  This might happen because their death occurs before they even considered writing a Will. Some people feel that they don’t need a Will because they don’t have a substantial estate. A person might write a Will, only to have a Court declare it invalid after they die, which has the same legal effect as dying without a Will at all.

When a person dies without a Will, the law has to find a way to distribute that person’s property. In some parts of the world, the government will take most or all of the deceased’s estate, but in most western countries there is a strong preference in the law to keep property in the family of the deceased, generally leaving it to the closest living relatives.

The exact order of priorities among relatives differs from state to state in Australia, but the goals of intestacy law (keeping property in the family) are broadly the same, so the schemes in each State are usually quite similar.

Often the surviving spouse will receive the first “piece” of the deceased’s estate. The value of this piece varies over time.  For example, in South Australia for many years the surviving spouse in an intestacy would receive the first $10,000 plus a percentage of the remaining estate. In February 2009, the law in South Australia was changed to increase this to $100,000 plus a percentage of the remaining estate.

Death Benefits … Who Benefits? Do you know who will receive the benefits from your life insurance policy and superannuation fund?

Death Benefits … Who Benefits? Do you know who will receive the benefits from your life insurance policy and superannuation fund?

You need to decide who should benefit from your assets or for whom you wish to provide financially.

You should be clear on how you want your beneficiaries to benefit – do you want them to inherit an asset, an income or cash?

Your Will cannot dictate who inherits the benefits from your life assurance policy.  You might think you can revoke the beneficiaries you have nominated on a life insurance policy by simply nominating other beneficiaries in your Will. But your loved ones might be in for a nasty surprise, when they find out (after your death) that you were wrong.

The life insurer has a contractual relationship with you as the policyholder, and they will only pay out the benefits to the beneficiaries nominated in your insurance contract, regardless of whether your Will states otherwise.

If you want to change your life insurance policy beneficiaries, you need to do this directly with your life insurance company.  You can’t do it in your Will.

Similarly, when it comes to your superannuation fund benefit, the discretion to distribute your death benefit lies with the trustees of the super fund, and they might not necessarily follow your wishes as stated on your beneficiary nomination form.  It is a complex area of the law, which may well have changed since you started with your super fund.

Death & taxes, illness & share-market corrections may be unavoidable … but they don’t have to ruin your family or your business.  Make the effort to protect the people you really care about.  Call Genders & Partners to create an integrated estate plan and avoid questions regarding death benefits in Adelaide and other areas in South Australia. And do it NOW … before it is too late.

How To Create An Expensive Disaster For Your Family To Fix After Your Death

  1. Write your own Will. Use one of those cheap kits from the post office. The cheaper the better – why waste money on expensive stationery?
  2. Even better, download something from the interweb, preferably from another country. Try to get something that doesn’t have any creation date on it –it won’t be hard – that way you can be pretty sure that your Will won’t comply with local laws here and now.
  3. Don’t pay for professional legal advice. Just do it yourself. Type up (or better yet handwrite in a shaky hand) your own Will. Just in case, write up several Wills all on the same day – each slightly different.
  4. Make your gift to your daughter conditional upon her divorcing her loser husband. Put your son’s legacy in trust for 50 years, unless he completes 6 years in the army. Tell your wife that she can only keep the house as long as she never even thinks about another man AND never again speaks to her interfering busy-body mother.
  5. When writing your Will, talk about the assets in incredible detail – down to the serial number on your television. Then forget to keep track of those assets throughout your lifetime. Sell some, give some away, and junk some. It will be good for a laugh as you look up from Purgatory at your family trying to work out which assets are actually part of your estate, and who is to get what.
  6. Also, don’t bother trying to distinguish between your own assets outright, compared with assets that you might own jointly with someone else, or assets that are owned in a trust or company. Just treat them all the same.
  7. Try not to talk about your testamentary wishes with your family. After all they won’t get anything until after you’re dead, so they can jolly well wait until then.
  8. Be as secretive as possible with your own family, especially about your financial affairs. Don’t talk about what you are planning to do. Passively encourage your spouse and kids to assume they know what you want. Leave it vague enough so no one really knows.

Wills and Estate Planning Adelaide: Baby Boomers – Are You Bequeathing Disaster to Your Family

Baby Boomers were born between 1945 and 1965.  As a segment of Australian society we represent a BIG chunk of our national population, and account for a massive percentage of the nation’s private net-worth.

According to the Australian Bureau of Statistics people aged 65 years and over made up 13% of Australia’s population at 30 June 2007. This proportion is projected to increase to 25% in 2056 and to 28% in 2101.

As we prepare to transition into retirement & beyond, we are about to witness the greatest transfer of wealth ever in Australia’s history.

However 2010 Australian research commissioned by the Salvation Army from Roy Morgan Research reveals that nearly two thirds of the adult Australian population does not have a Will. The research also shows 40% of Australians aged 25+ have experienced or know someone who has experienced family conflict as a result of a family member not leaving a Will.

Dying without any Will is called intestacy.  When that happens, the government of the State where you die will determine what will happen to your assets.  This can lead to unintended people (or even the government) gaining ownership of your hard-earned assets.

Many Australians have no idea what happens to their assets after they die, and sadly many rely on the misguided notion that a Do it Yourself Will is sufficient to protect their family and assets.