Disputes over estates are inherently messy, because they not only involve challenging legal circumstances but also the emotion of family members and partners of the deceased.
A problem can arise if the deceased does not update their Will when their life circumstances change. Such as getting remarried or moving in with a new defacto partner.
In this case, the client found that when her partner died there was no provision for her in his Will, despite the couple being together for more than five years.
Lindbloms lawyer Martin Faull was contacted in 2014 by a woman calling from the U.S. Her partner had died, but he had made no provision for her in his Will, even though she was totally financially dependent on him.
The deceased man had left his estate to his two children.
In Australia domestic partners can qualify to bring a claim against an estate if they have lived together for three years or more. The U.S. based client and the deceased Australian had been continuously together for five years, and had split their time between the two countries. They lived together for about eight months per year.
Martin Faull argued that the couple were in a long-term, committed relationship and that as they lived together for eight or more months per year, across two countries, for more than five years. They maintained their relationship when apart with daily Skype and video calls.
Martin also showed that the deceased had proposed marriage to the client, and that the client was financially dependent on the deceased, with the deceased regularly depositing money into the client’s account to support her following the failure of a business she ran in the U.S.
He also showed that when the deceased was suffering back pain, it was the client who took him to all of his appointments and cared for him when he discovered he had liver cancer. Although they were due to be married, the deceased died three days prior to their marriage ceremony, he had not updated his will leaving the client in a precarious financial position.
Martin provided an affidavit from the client outlining a discussion she had with the deceased about amending the deceased’s Will, and submitted that a lawyer had been instructed to draft a new Will which provided for the client as well as the deceased’s children. This Will, however, was not signed.
Martin communicated continuously with the U.S. client via Skype and emails. The client presented evidence to the court that showed the deceased’s intention to provide for her both in will and via binding superannuation benefit election form the deceased had signed but not returned to his superannuation fund.
After 18 months of legal work the matter finalised by way of an agreed settlement, with the client receiving a share of the deceased’s estate that she was willing to accept.
This case is a clear reminder of the importance of updating Wills when life circumstances change and being aware of what claims may potentially be brought against an estate.
Lindbloms have significant experience with estate disputes and estate administration. Contact us for a free initial discussion about your needs.