A recent article in The Courier-Mail highlights an increasing trend in estate litigation where alleged lovers of a deceased make claims against the estate for provision. The article suggests the need for adult children hiring their own investigators in an attempt to fight off estate claims from alleged lovers.
Hayley Atkinson, a Wills & Estates solicitor at Quinn & Scattini, responds –
The legislation states that there are three types of people entitled to make a claim for further provision from a deceased estate. They are: a spouse (including de-facto spouse), children (including step-children) and a dependant (who is either a parent of the deceased, a parent of a child of a deceased who is under 18 years, or a person under the age of 18 who either wholly or substantially relied on the deceased). That means that any person who meets those criteria can theoretically put their hand up for a slice of the estate.
But gone are the days when a disgruntled beneficiary simply turned up to court and walked out with an inheritance. Now, a potential applicant must show their reasons (with supporting evidence) as to why they feel they have not been adequately provided for in the will. And they have to be genuine reasons too – not simply, “I was the deceased’s lover.”
For a person responding to such a claim, it is necessary to obtain as much evidence as possible to show that the ‘relationship’ with the deceased was not one where they living together as a couple on a genuine domestic basis. This ensures that the people who are legitimately entitled to the estate receive their portion and it is not taken away. However, it becomes complicated because the law allows people to be classified as “de-facto” (for some purposes) without actually living in the same house or having a sexual relationship.
It can be tricky because the definition of “de-facto” is broad and a number of factors can be considered in determining whether a couple are in fact “de-facto”. It makes it especially hard for adult children to accept that, whilst they may not view a person as their parent’s de-facto partner, in the eyes of the law that person actually meets the definition and is entitled to make a claim if they so wish.
We regularly receive enquiries from adult children who are unhappy with new “de-facto” partners who have recently come onto the scene. Their main concern is that it is against the wishes of their loved one and they want to know what they can do, so it is not surprising to hear of people hiring investigators in a bid to prove their point. However, it is less common, to hear of “alleged lovers” just popping out of the blue and making a random claim. I imagine it would be quite hard for an “alleged lover” to prove their relationship was on a genuine domestic basis as the social perception of the couple is a consideration of the court.
Whilst it can be hard for adult children, it can also be traumatising for the person at the other end of the investigation – the “alleged” partner. They are often described as “evil” or “manipulative” and can be completely alienated from the family circle for simply exercising their “rights at law.”
In these cases, there are always two sides to a story. There is the side that says that the deceased’s wishes should simply be carried out, and there is the side that argues that the deceased did not make “just and wise” provision in the will.