In some cases, succession and superannuation laws provide quite differently for a person who is actually a spouse, as against someone who is not. It can be difficult to determine which side of the line a relationship falls, but it can be quite important.

In the recent decision of NSW Trustee and Guardian v McGrath [2013] NSWSC 1894, the NSW Supreme Court decided that Mr McGrath was the deceased’s de facto spouse at the time that she died, despite the relationship being ’borderline’. In this case the deceased had no Will, so Mr McGrath (as her de facto spouse) would receive a large portion of the estate and would have had no entitlement otherwise.

Mr McGrath and the deceased were both previously (separately) married and the two couples were friends for over 20 years. Mr McGrath’s evidence was that when each of their respective spouses died within weeks of each other, he and the deceased formed a close bond and shared that until her death. He described their relationship not as de facto spouses, but as ’boyfriend/girlfriend’.

They did not live together, although they often spent the weekend at each other’s houses. They had an intimate relationship. They spent holidays, such as birthdays and Christmas, together and with each other’s families. They cared for and visited each other in hospital if one of them was unwell.

This case demonstrates that there is no one determinative factor when considering whether two people are de facto and that the decision will depend on the court’s view of the overall circumstances of the case.

Given the deceased left no Will, it is impossible to know whether the outcome of this case accords with her wishes, or indeed whether she turned her mind to the question at all.

When thinking about your Will and estate planning, it is important to consider your circumstances and all of the people who might be eligible to receive a portion of your estate or make a claim against it.