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  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
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.
To discuss your estate planning or your entitlements under
someone's Will, please contact our Wills and Estate team
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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