Sent: 22-08-2005 05:48:49
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De Facto Dreaming - Tony Crilly
I am always learning new complexities when it comes to advising clients about their rights regarding possible claims on their estate.
Recently a case decided that there was a de facto relationship in existence, where the circumstances of the parties were unclear. This has tremendous impact on estate planning as it implies that the de facto will have a potential claim on an estate.
The case of PY v. CY  QCA 247, is a Supreme Court decision that confirms that a de facto relationship exists for the purposes of the legislation, where two people live together as a couple on a genuine domestic basis , even if the cohabitation is interrupted.
In this case the couple lived together and that cohabitation was interrupted by events regarding the illness of the parents of the female partner. The male partner intended to move into a new residence with the woman once he sold his business and current residence. Prior to that she had been living in the mans house and shared a "common residence" and lived together on a genuine domestic basis. The result was an order that he hold one half of the property on trust for the female partner, which was registered in his name.
The couple lived together with the son of the woman for a period of nine years. Had the fellow died, his will and estate (including the property) could have been attacked by a claim for Family Provision, if no adequate provision was made.
If he had died intestate the primary residence would have been able to be claimed by the de facto as well as a portion of the residue estate, shared with the children of the deceased.
It is important to note that the law continues to emerge especially in Queensland. Clients are recommended to seek specialist advice in their particular circumstances as a generalised approach will not be adequate. This case raises issues about exactly what will constitute a de facto relationship. The following points are matters to be considered:
- The nature and extent of common residence
- Length of the relationship
- Whether a sexual relationship existed
- The degree of financial dependence or interdependence
- Ownership, use and acquisition of property
- The degree of mutual commitment to a shares life
- The performance of household tasks
- The reputation and public aspects of their life.
These items are by no means conclusive and just because there is a shared residence does not mean there will be a de facto relationship.
It is really juicy stuff when you get the details and important to get it right while you are still alive. Make sure the information is understood by clients in time for them to take action to protect those they intend to provide for in the future.Tony Crilly is a solicitor of the Supreme Court of Queensland, principal of Crilly Lawyers (focused on commercial and succession law). Contact Tony at crillylaw.com.au.
This email is general in nature only and does not constitute or convey specific or professional advice. Legislation changes may occur quickly. Formal advice should be sought before acting in any of the areas discussed. Be aware that the information in these articles may become innaccurate with time. Responsibility is disclaimed for any inaccuracies, errors or omissions. Particular investments are neither invited nor recommended and hence this publication is not "financial product advice" as defined in Section 766B of the above legislation. All expressions of opinion by contributors are published on the basis that they are not to be regarded as expressing the official opinion of any other person or entity unless expressly stated. No responsibility for the accuracy of the opinions or information contained in the contributor's articles is accepted by any other person or entity. Copyright: This publication is copyright. If you wish to reproduce this article you require a license, which can be purchased here, to do so.