Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 9 October 2020.
Peter and his wife Diane, separate after a 30-year marriage.
Two years later, Peter moves in with his girlfriend, Jenny.
Peter unfortunately passes-away unexpectedly at the age of 55. When Peter passes, he is still legally married to Diane and they had not formally divided their assets by way of a property settlement.
At Peter’s death, he has three children to Diane who are in their 20s.
Peter does not leave a will.
Peter’s whole estate stands to pass “on intestacy” to Diane on the basis that she is his legal spouse at his date of death.
Jenny commences proceedings in the Supreme Court, seeking a declaration that she was Peter’s de facto spouse.
The Court decides that although Peter did not disclose his relationship with Jenny to the rest of his family, a de facto relationship had in fact existed for 5 years prior to his death.
The result is that Peter dies with two spouses.
Due to animosity between Diane and Jenny, the Court appoints the New South Wales Trustee and Guardian to administer Peter’s estate.
The Court then considers the orders that should be made to ensure the “just and equitable” distribution of Peter’s $3 million estate.
The Court ultimately orders that Jenny receives the home in which she resided with Peter at his date of death, worth $750,000 together with a lump sum payment of $500,000.
Diane receives the balance of Peter’s estate and Diane also receives real estate that she owned jointly with Peter, passing to her by way of “survivorship”.
The two-day hearing is complex and costly and may have been avoided if Peter had put his affairs in order with proper estate planning.
If YOU would like a particular issue addressed please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
