If you were in a de facto relationship and your de facto spouse dies intestate (that is, without a Will), it is a very difficult and complex process to apply for and obtain a grant of letters of administration of your spouse’s estate.
A de facto relationship for the purposes of the Property (Relationships) Act 1984 is a relationship between two adult persons:
- Who live together as a couple, and
- Who are not married to one another or related by family.
You will need to prove to the Court that you were in a de facto relationship. Kearney J in Simonis v Perpetual Trustee Co Ltd (1987)[1] indicated that all of the circumstances of the relationship are to be taken into account to determine whether a de facto relationship existed, including such of the following matters as may be relevant in a particular case:
1. the duration of the relationship;
2. the nature and extent of a common residence;
3. whether or not a sexual relationship existed;
4. the degree of financial dependence or interdependence, and any arrangements for financial support between the parties;
5. the use, ownership and acquisition of property;
6. the degree of mutual commitment to a shared life;
7. the care and support of children;
8. the performance of household duties; and
9. the reputation and public aspects of the relationship.
Furthermore, the Court will require the consent of those persons who would otherwise have been entitled to your spouse’s estate in the event you were not in a de facto relationship with the deceased. In you can’t obtain the consent of those persons, then you will need to serve notice on them of your application for administration.
The Court will also require affidavit evidence from at least two (2) persons who can corroborate that you were in a de facto relationship.
Contact Conditsis Lawyers today for all your estate questions on (02) 4324 5688.
[1] 21 NSWLR 677
