Published in the Coffs Coast Advocate on 13 June 2015.
Jack and Jill have been married for more than 30 years. They have 3 children together and they own a valuable piece of real estate jointly.
Jack moved out 10 years ago when Jill entered into a relationship with Jane.
Jack and Jill have never been formally divorced and they have not entered into a family law property settlement.
Jane, who is 15 years Jill’s junior, had a child during the course of their relationship through IVF.
Jill has been intending to make a will for some time and has also planned to talk to a solicitor about finalising her financial ties with Jack.
Unfortunately, Jill dies in a motor vehicle accident before attending to these matters.
Not long after Jill’s death, Jane discovers that she is 10 weeks’ pregnant with another IVF child.
Jane is concerned about her rights and consults a solicitor for advice.
The solicitor advises Jane that because Jill died without making a will, her estate will be dealt with under the laws on intestacy.
The effect of these laws is that Jane, as Jill’s de facto partner, is entitled to Jill’s personal effects, the sum of approximately $450,000 and half of the rest of Jill’s estate.
The solicitor also advises her that because Jack and Jill were not divorced, the laws sees Jack also as a surviving spouse and he is entitled to half of what Jane stands to receive.
Jane is also advised that the rest of Jill’s estate is to be shared amongst Jill’s children equally. These children include Jill’s three adult children, her IVF child and her unborn child because the “period of gestation” commenced before Jill’s death.
The solicitor also advises Jane that because the house was owned jointly, Jack is entitled to the whole of the property by way of survivorship. Accordingly, the property falls outside Jill’s estate and is not dealt with under the laws on intestacy. Unfortunately, there is very little else in the estate.
Her solicitor advises Jane to make a claim against Jill’s estate under family provision legislation. The costs of the claim could have been avoided if Jane had consulted a solicitor.
