DECEASED ESTATES: CAN SHORT-TERM DOMESTIC PARTNERS MAKE A CLAIM?
Although domestic partnerships are increasingly common these days, the legal issues that may flow from them can be complicated. For example, if you have lived with your partner for only a short time before they die, can you make a claim against their estate if you haven’t been included in their will? This was an issue in a recent case. The Court had to work out whether there was in fact a domestic partnership and whether there were special reasons why a woman should be allowed to make a claim.
Background – Domestic partner’s deceased estate claim
A man (the deceased) had made a will in 2011, leaving his entire estate to four sporting organisations. He died in July 2015. Probate was granted in October 2015 and then in March 2016 two of his three adult children made a claim for provision from his estate. In April 2016, the woman applied to the Court for a declaration that they were domestic partners, and that the interests of justice required that she should be allowed to apply for provision from the estate.
The woman said that she and the deceased began living together soon after they had met, from late January 2014. Apart from the times that the deceased spent in hospital, she said that they had lived together until his death in July 2015, a period of about 18 months.
She had moved only some of her belongings into his home and their finances were kept separate. They both received Centrelink pensions but neither had notified Centrelink that they had commenced living together.
The woman didn’t have a set of keys to the man’s home. The pair had discussed getting married and attended some pre-marriage counselling sessions with their local church. They had planned to marry in October 2014 but the deceased’s cancer diagnosis meant that their plans were postponed.
Domestic partnerships and the law
South Australian law says that domestic partners can make claims for provision out of their deceased partners’ estates. Domestic partnerships exist where an unmarried couple has been living in a “close personal relationship” on a genuine domestic basis. They must have either:
- Lived together continuously for at least three years; or
- In the previous four years, lived together for a period totalling 3 years.
If they meet these criteria, the Court can make a declaration that a relationship is or was a domestic partnership. If they don’t meet these criteria, for example if their relationship was shorter than three years, the Court may still be able to make a declaration that they were domestic partners if it is in the interests of justice.
In this case, the woman had claimed that she was in a domestic partnership with the man but had admitted that the arrangement had only been in place for 18 months before his death. That meant that there were two questions to consider:
- Were they living in a close personal relationship?
- Was it in the interests of justice to declare that the relationship was a domestic partnership?
The Court said that the law aimed to recognise significant lasting relationships and so it had to look at all aspects of the relationship, not just whether the couple intended to marry or whether they had a sexual relationship.
It found that even though the couple shared many activities and had intended to marry, it wasn’t satisfied that they had lived together on a genuine domestic basis because:
- The woman had never moved all of her belongings into the man’s home.
- The woman never had her own set of keys.
- The woman kept her financial documents at her father’s home (where she had been living before she met the deceased).
- In her evidence to the Court, he referred to her father’s house as “home”.
- She didn’t advise any government authorities or financial institutions of a change of address.
The Court said that their relationship had no “hallmarks of a couple committed to each other on an enduring basis such that it could be characterised as one where they were living together in a close personal relationship.”
It said that even if they had been living together, there was nothing particularly so special about the relationship that a declaration of domestic partnership should be made in the interests of justice. The Court gave some examples of what would make a relationship worthy of a declaration, including:
- One party providing a significant degree of care to the other.
- One party giving up employment or accommodation in order to spend their life with the other.
The Court found that the woman had made few changes to her life in order to spend time with the deceased and that her caring responsibilities had been fairly limited.
What does it mean?
This case demonstrates that couples who enter into domestic partnerships must be very clear about the nature of their arrangement and should give careful thought to more minor details. For example, if the woman and the deceased had notified Centrelink of the change in living arrangements, that might have convinced the Court that they had intended to be living together. It’s important to note that if a couple does start living together but doesn’t notify Centrelink, they may be exposed to penalties for failing to advise of their change in circumstances.
In this case, the Court made it very clear that an intention to marry wasn’t enough. It looked to the way in which they conducted their daily lives to conclude that there was no domestic partnership.
If you are about to enter into a domestic partnership and have a long-term commitment to your partner, there are some things you can do to protect yourself and to make sure they are provided for in the event of your death.
The most effective thing you can do is to update your will to include your partner. It is essential that your will is properly drafted and executed and so it’s a good idea to get a wills lawyer to do this work for you.
Also, you should ensure that your personal details are updated. This includes advising financial institutions and other organisations of any change of address and the contact details of your next-of-kin. And if you’re moving in, make sure you’re fully moved in rather than maintaining two homes.
The other important point is that even if you’ve lived together for less than three years, it’s still possible to make a claim on your deceased partner’s estate. But you need to be able to prove that you were living together on a genuine domestic basis and convince a court that it’s in the interests of justice to declare that there was a domestic partnership.
Websters Lawyers has an outstanding team of wills and estates lawyers who can assist you with your inheritance claim, or to draft your will. Contact us today for a free initial consultation. We’re here to help.
FREE FIRST INTERVIEW
NO WIN NO FEE*
LOCAL LAWYERS FOR LOCAL NEEDS
GET THE RIGHT LAWYER FIRST
Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner
Very professional mannerism and overall great outcome was delivered by Websters Lawyers.
West Ryde NSW
Helpful, explained fully, patient, excellent service.
Patient and helpful in explaining the process.
Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.
Making my will was effortless on my part, with everything explained clearly. Well done to all.
Great service, professional, explains things clearly, definitely recommend Websters Lawyers.
Patient, professional, good communication about procedures and probable outcomes.
Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.
All in all my experience was great. Thank you for your time and expertise.
My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.
Practical and very helpful. Reasons and explanations given where needed
I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.
The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.
[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.
I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.
It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.
Battery Hill QLD
[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.
[My lawyer] was excellent.
Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!
Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].
[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.
[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.
Professional. Smooth Transaction.
I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.
This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.
[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.
With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.
[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.
Cameron, Munno Para
I felt confident knowing my matter was in good hands. Very professional!
Shravan, Christie Downs
Initial phone call was fantastic and the role of an executor was fully explained.
Penny, Henley Beach
The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.
Dale, Fairview Park
[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.
Jason, Munno Para West
I had any of my concerns answered to my satisfaction and understanding.
Valda, Ingle Farm
[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.
Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.
My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.
Rafael, Davoren Park
I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.
I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.
Pamela, West Lakes
[My lawyer] was very professional and I was made comfortable to understand.
I was very pleased with the end result and how well [my lawyer] conducted herself.
Jesse, Morphett Vale
[My lawyer] has been very prompt , reliable and provided a high level of communication.
My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.
Magda, Holden Hill
Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.
Lee, Evanston Park
Top bunch of solicitors and admin staff. Very friendly and to the point service.
Bradley, Hallett Cove
Websters Lawyers were very professional in their service, I would be happy to recommend them.
Carole, Tea Tree Gully
We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.
David and Dianne, Lockleys
I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.
Solid, to the point, no hustle. Highly recommend.
George, Windsor Gardens