Some people may think that intestacy rules would be suitable in directing your estate (particularly if you wish your spouse and children to inherit) however you have no control over who controls your assets, as it must be divided in specifically fixed proportions depending upon the family, or domestic relationship between you and your family members.
If a person dies intestate your family would apply to the Court to appoint an administrator who arranges the funeral, collects assets, pay any debts and taxes that the estate owes then distribute any funds remaining.
As an intestate estate will be distributed according to legislation the administrator is usually the next of kin. Courts have a broad discretion to appoint an administrator, in most cases whoever has the largest share in the estate is considered the most suitable.
Melissa Dunn died intestate early this month following a short illness. A dispute arose between burial or cremation of her body. Nikola Dragarski, the father of one of Melissa’s children, favoured a burial and sought a declaration that he was Melissa’s next of kin; her mother Sharon wished to cremate and disputed this claim.
In intestacy it is usual for control of the disposal of a body to be decided by ranking the next of kin as follows: spouse (including a de facto partner), child, parent and sibling.
The sole question for determination is whether Nikola was the de facto partner of Melissa at the time of her death. The Court would consider that a couple is in a de facto relationship by examining the circumstances in which they lived their lives.
Nikola & Melissa began their relationship in about 2003; they started to live together in about 2010. Their child, Bianca, was born in 2011. In March 2016 they separated. In August she moved out and commenced to live in her own house at Dapto.
Following their separation, Nikola spent time with Melissa and visited her at Dapto. Indeed, Nikola submitted to the Court that he ‘considered’ that they had resumed their relationship. As Melissa had moved back in with Nikola in March or April of 2018
However when Melissa was admitted to Hospital the client registration form recorded that the person for notification was Melissa’s mother, Sharon; importantly in January 2019 Melissa requested, and Centrelink authorised Sharon to act on her behalf in relation to the benefits to which she was entitled.
Similarly, Melissa was an active member of an online dating website; did not share a bank account or online banking log-on details with Nikola and provided Sharon’s address in her contact details. Melissa received single parenting payments from Centrelink. Final orders for parenting arrangements had been made in the Federal Circuit Court of Australia in May 2017 in relation to the division of responsibility between Nikola and Melissa for their daughter.
By January 2019 Melissa was aware that her condition was terminal; on 9 January 2019 she posted the following message on Facebook
‘I am still at his house we still not together though. Kids are great’.
The following day Melissa messaged Nikola’s sister
“Yes I am staying with Nicky. We have worked a lot of things out. We are happy where we are at the moment. He has been great”.
Melissa’s Facebook profile at the time of her death recorded her status was ‘single’; her Facebook friends included Nikola’s mother but not Nikola.
The Court held that Nikola and Melissa’s relationship had been extremely troubled and although Nikola wanted to resume it; Melissa was less certain. Melissa was admitted to hospital with a serious illness and as a compassionate person, Nikola had gone out of his way to be kind to her.
Similarly the Court sought to glean information from the competing accounts provided by the parties to form the opinion that based on the balance of probabilities a statement of Melissa’s sister Erin that Melissa had moved into Nikola’s home as he had not complied with the parenting order allowing Melissa to have 50% of the time with Bianca was decisive; Melissa insisted that they never restarted their relationship and slept in separate rooms.
The Court dismissed Nikola’s application.
heirs & successes 