Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 2 November 2019.
Larry and Diana are married and have three children. They make wills leaving everything to each other.
Larry and Diana separate several years later. They divide their matrimonial property and enter into a formal agreement under the Family Law Act but they never proceed with a divorce.
Larry later meets Penny and they enter into a de facto relationship. Penny moves into Larry’s house.
After a short relationship, Larry moves into an aged care facility following a cancer diagnosis. Penny continues to reside in Larry’s house until he passes away, six months later.
Larry’s will, leaving everything to Diana, remains valid.
Penny makes a claim against Larry’s estate.
Diana gives evidence that her relationship with Larry remained on very good terms following the separation. She says that Larry did not change his will because he wanted her and eventually their children to receive his estate.
The Court views smart-phone video evidence of Larry stating that he did not want Penny to inherit his estate and him saying “that’s why we’re having a fight”.
Penny says that the video was staged by Larry’s children.
The Court notes that Larry met Penny when he was aged 65, just four years before his death.
The Court rules that Penny and Larry were not in a de facto relationship at the time of his death and that Penny was therefore not, on this basis, eligible to make a claim.
Similarly, the Court finds that Penny was not eligible to claim as a person being in a “close personal relationship” with the deceased.
However, the Court finds that Penny qualified as a person who was “partly dependent upon the deceased” at the time of his death and had, in the past, been “a member of the household of which the deceased person was a member” and awards Penny 55% of Larry’s $500,000 estate.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
