De Facto, Intestacy, Tenants in Common

Phung Thanh Mac (“the deceased”) died intestate with a relatively small estate in November 2019. An intestate estate in Queensland is distributed under Part 3 of the Succession Act (“the Act”). Nga Thi Vu and the deceased lived in a de facto relationship from September 1994; therefore, she is a spouse under of s 5AA of the Act.

Who takes under Intestacy

In this case, those who can take under the intestacy are the deceased’s:

(a) spouse, and

(b) any children who have survived him.

Under Part 3 of the Act, Ms Vu is entitled to $150,000 together with any household chattels and, on the basis that more than one child of the deceased survived him, one-third of the residue. The deceased estate consists of the home owned with Ms Vu as tenants in common (valued at $310,000) and approximately $80,000 in a trust account. 

Tenants in Common

When property is owned by parties as tenants in common it means they co-own a property in defined shares that they can dispose of as they wish; meaning that there is no right of survivorship.

Ms Vu made an application to acquire the deceased’s interest in the home they owned as tenants in common.

The applicant (the administrator of the deceased’s estate) seeks an order under s 6 of the Succession Act that he is justified in:

(a) transmitting to Ms Vu, under s 39(3)(b) and s 39C of the Act, the interest of the deceased in the home for $156,052.40 (“transfer value”), and

(b) setting off the transfer value against the entitlement of Ms Vu to the estate of the deceased.

The applicant believes the deceased had four children from a marriage in Vietnam. He did not have contact with them during his de facto relationship with Nga Vu; she does not know the names of the children or where they are. The applicant engaged a private investigator to find any surviving children without success. 

The Decision

The Court held that from the evidence submitted it is appropriate for the applicant to proceed on the basis that the deceased was survived by more than one child allowing distribution of the estate on that basis and to make further inquiries so that any surviving child can receive his or her entitlement. Noting that it would be a nonsense if Ms Vu could not obtain sole ownership of the shared home by setting off the statutory legacy due to her as the only way for her to generate the funds necessary to pay the transfer value would be to sell the house.

The applicant, therefore, is entitled to the direction he seeks under s 6 of the Act.

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