De facto, Children & Intestacy

Family for the purposes of succession is considered to be an applicable group of relationships. It has been said that this is illustrated by who inherits the property of a person who dies without a Will; those who can claim against a Will as part of a family provision claim; it may be a broad definition that incorporates couples with or without children, sole parents with children, or families of related adults – for example brothers and sisters living together, or any permutation of these things.

Ashoor Hilaney was killed as a result of a motorcycle accident in March 2011 aged 47. He did not have a valid Will. Ashoor and his former wife Domenica had a daughter, Jessica aged 19. Under the rules of intestacy and in the absence of any other claims, his daughter, would be entitled to the whole of Ashoor’s estate worth around $150,000.

Helen Peipi claims she was Ashoor’s de facto partner for at least two years before his death. If Helen’s claim was established, then as the de facto spouse of an intestate person with a child by a previous relationship, Helen would be entitled to the deceased’s personal effects and the statutory legacy of $350,000 under the Act. However if this was to occur due to the size of the estate, Jessica would get nothing.

Jessica is profoundlyly disabled and completely dependent upon others to assist her to eat, bathe, and dress, a situation which will continue for the rest of her life.

Complicating matters further Jessica and Helen have brought family provision claims against the estate. Jessica is profoundly disabled and has substantial financial needs. If Helen is found to be the Ashoor’s de facto, then Jessica will bring a family provision claim against the estate.

Helen also claims to have pressing financial needs, and if found not to be the Ashoor’s de facto spouse, she brings a family provision claim against his estate:

1. As a de facto partner of more than 2 years;
2. a person living in the same household as the deceased and dependent upon him; and
3. as a person in a close personal relationship with the deceased:

Helen argued that she is an “eligible person” able to claim under the Act.The Court’s findings concluded that Helen and the Ashoor were in a continuous de facto relationship for 2 years involving:

• continuous common residence over that whole period;
• a sexual relationship accompanied by obvious indications of public affection in a variety of situations;
• a moderate degree of financial interdependence with mutual financial sacrifices at different times;
• a demonstrable commitment to a shared life;
• the sharing of household and domestic duties; and, a relationship which presented them to many different social groups as a close couple.

However Jessica’s claim for family provision also succeeded and she will take 65 per cent of the estate and notional estate. Owing to the ill feeling between Helen and Ashoor’s ex wife the Court didn’t believe either was “fit to be so trusted” to properly administer the estate so granted them a short period to agree to the appointment of a third party who was prepared to act in that role.

In this example there are competing claims from the de facto partner and child of the deceased. These matters are further compounded due to intestacy. The issues outlined in this matter are complicated due to the family relationships but might not have occurred if Ashoor had created a valid Will.