Intestacy, Defacto & the Factual Matrix

In order for a Court to determine whether two people are in a de facto relationship it may require detailed affidavit evidence (including investigations of telephone and bank records) when assessing the nature and extent of the relationship.

Shirley Gardner died intestate in 2017. Her marriage in 1998 had voided her last known will dated 10 October 1989.

Shirley’s husband predeceased her; similarly, her only child predeceased her.

In 2018 Jose Bernengo claimed that he was Shirley’s surviving de facto spouse and sought letters of administration and a declaration that and was entitled to the whole of the estate.

Jose submitted that he and Shirley had been in a de facto relationship (that they had kept largely secret from the outside world – including members of Shirley’s family) for approximately 10 years up until the time of her death.

Jose split his time between Shirley’s home in Cammeray and his own country property in Rylstone, NSW. However, he spent more time at Cammeray than he did in Rylstone.

Both Shirley’s step-daughter and her neighbour corroborated Jose’s evidence regarding the nature and duration of the relationship.

Shirley’s nephew Edward filed a cross-claim seeking letters of administration and a declaration that Shirley’s other nieces and nephews (and grand-nieces and grand-nephews) were entitled to the whole estate.

Edward submitted that Shirley and Jose were only friends; had not displayed affection towards each other at family events, and although agreeing Jose occasionally stayed at Shirley’s home in Cammeray it was not as often as Jose submitted.

Edward relied upon evidence from hospital admissions where Shirley stated she lived alone.

Edward submitted that in a conversation he had with Shirley she claimed that she “tolerated” Jose as evidence that a relationship between his Aunt and Jose didn’t exist.

Edwards evidence was corroborated by a number of the other nieces and nephews, as well as other family relations and friends.

The Court believed that although superficially a number of these factors suggested that Shirley and Jose had not been in a de facto relationship there was much strongly supportive evidence that they were in a de facto relationship for at least 2 years before Shirley’s death.

The Court ordered that Jose was Shirley’s surviving spouse and was entitled to the entirety of her estate and granted him letters of administration.

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