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Family Law, Wills

Intestacy and De facto Spouses

After Nomads bikie member, Adrian Pamplin, died in 2013, his mother and his long-time girlfriend, Ann Irwin, battled in Court for the next 4 years, until the NSW Supreme Court finally handed down a judgment in November 2017. As Pamplin died without a Will, the primary issue in the proceedings was whether Pamplin was in a de facto relationship with Irwin and whether that relationship spanned at least 2 years before his death. Pamplin’s mother argued that Pamplin and Irwin were merely friends, as although they generally lived at the same property, for the most part, they lived in separate buildings. It was also alleged that Irwin had lied to Centrelink about her relationship with Pamplin in order to maximise her benefits. Despite all of this, the Court found that Pamplin and Irwin satisfied the test to be considered a de facto couple under the law of intestacy and were committed to a shared life together. Irwin was treated like a spouse by Pamplin, the two lived at the same property and they were sexually intimate. As a result, Irwin was awarded Pamplin’s entire estate under the law of intestacy.1

In contrast, in another matter which came before the NSW Supreme Court in recent years, the Court found that a couple was not in a de facto relationship because they occupied separate bedrooms in the same house, they had not been sexually intimate for many years, and the surviving partner told Centrelink and his doctor that he was single, although a number of witnesses attested that the couple were in a loving relationship. Instead, the surviving partner was found to have been in a close personal relationship with the deceased, rather than a de facto spouse, and was awarded $85,000 of an estate worth about $700,000. The surviving partner appealed the decision, but the appeal was dismissed by the Court of Appeal.2

In another case in 2015, the Supreme Court of NSW considered that as a couple were not de facto spouses for a continuous period of 2 years prior to the death of one, the surviving partner was not considered to be a spouse for the purposes of intestacy. This meant that the surviving partner was not able to claim the full value of the deceased’s estate, as they would have been had they been classified as a de facto spouse at the time of death.3 So far as the NSW legislation correlates with the Tasmanian legislation, the Supreme Court of Tasmania, has indicated that they believe this decision by the Supreme Court of NSW was wrong and that an on again / off again relationship which spanned at least 2 years but existed at the time of death would be considered to be a de facto relationship for intestacy.

While being legally married gives the surviving spouse a primary claim to the deceased’s estate if there is no Will (bearing in mind that children of other relationships also need to be provided for), de facto spouses who are not legally married do not enjoy this luxury. Furthermore, people may not understand what would happen to their estate and how it would be divided between potential beneficiaries under the laws of intestacy if they do not have a valid Will. These cases highlight the need to accurately record your wishes in a valid Will as this is the best way to ensure that your wishes are carried out and to reduce the possibility of lengthy and expensive litigation between potential beneficiaries after you have died.

If you would like assistance with drafting a Will, please contact us.

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