Case: De-Facto keeps Home after Spouses Death
Written by: Kimberley Kloukinas
Post date: 28th July, 2021
Rachel was devastated when her de-facto spouse of 20 years, John, died suddenly. Both Rachel and John had been previously married and both had adult children from their prior relationships. While Rachel and John never married, they purchased a home together and lived as if husband and wife until John’s tragic death.
Unfortunately, while John had updated his Will after his divorce, he had not revised his Will to take into account his relationship with Rachel. John’s Will left his entire estate to his two adult children. To further complicate matters, when Rachel and John purchased their home they were each registered as a separate owner of one half of the property. This meant that, under John’s Will, his two children effectively became owners of half of Rachel’s home. John’s children were now demanding that Rachel leave her home so the property could be sold.
Rachel consulted Richard Kent, a Partner at Mackinnon Jacobs Horton & Irving Lawyers. “When Rachel came to see me she was naturally distraught. Not only had she lost a loved one, she faced the prospect of losing her home as well. If the property were to be sold, there were insufficient funds to allow Rachael to purchase a suitable replacement home”, said Mr. Kent.
On advice from her lawyers, Rachel decided to challenge the terms of John’s Will in Court through a Testator’s Family Maintenance claim. “In circumstances where it can be shown that the deceased ought to have considered themself responsible to provide proper maintenance and support for someone under their Will, but did not do so properly or adequately, the Court may order that person receive more out of the estate” explained Mr Kent.
Rachel’s claim was successful and she was able to retain her home. She also received a moderate monetary legacy paid out of John’s estate. Mr Kent said that while John’s children also had claims to an entitlement out of John’s estate, the primary responsibility of a deceased was to ensure his or her surviving spouse was properly provided for in their Will. “However, every case is different and it is important to obtain advice as early as possible” added Mr Kent.
When asked whether the fact Rachel and John were not legally married created any difficulty for Rachel’s case, Mr Kent replied that it was the character of the relationship that was important. This means that de-facto relationships and even same-sex relationships are recognised by the Court in this jurisdiction and will, in the appropriate circumstances, allow a person to make a Testator Family Maintenance claim based upon that relationship.