The death of a partner can be extremely traumatising and this trauma may be compounded when the partner dies without leaving a will.
When a person dies without a Will, their domestic partner may be entitled to apply for a Grant of Letters of Administration (Grant), and they may inherit part and potentially, the whole estate in accordance with the intestacy rules as outlined in the Administration and Probate Act 1958 (VIC). The extent of their inheritance will depend on the other surviving family members; whether there may also be children, and sometimes other partners or spouses.
What is a Domestic Partner?
A domestic partner is distinct from a spouse by marriage.
A domestic partner (often called a ‘de facto partner’) is defined in Section 35(1) of the Relationships Act 2008 (Vic) as a person with whom the person is or has been in a domestic relationship or a person with whom the person is contemplating entering into a domestic relationship. The relationship may either be registered or unregistered.
A domestic relationship (if not registered) is:
- a relationship between two persons who are not married to each other, but who are living together as a couple on a genuine domestic basis (irrespective of gender); or
- the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person—
- for fee or reward; or
- on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
If a couple registered their relationship the domestic partner who is eligible to administer an estate will be able to do so without difficulty, as their relationship is already legally recognised.
In our experience, it remains relatively uncommon for couples to take the step of registering a domestic partnership in Victoria.
Where a relationship was not registered, the surviving domestic partner bears the onus of providing that a genuine relationship existed and that they have standing to make an application for a Grant of Letters of Administration.
What evidence is needed to prove domestic partnership
When applying for a Grant, the applicant should gather as much documentation as possible to support evidence of the relationship. This evidence might include photographs of the couple and their families, joint financial records, utility bills with shared address and other documents demonstrating long term commitment to one another.
The applicant will need address the factors that the court considers when a determining whether a couple were in a genuine domestic relationship, namely:
- The degree of mutual commitment to a shared life;
- The duration of the relationship;
- The nature and extent of common residence;
- Whether or not a sexual relationship existed;
- The degree of financial dependence or interdependence, and any arrangement for financial support, between the parties;
- The ownership, use and acquisition of property;
- The care and support of children;
- The reputation and public aspects of the relationship.
Additional evidence
In our experience the Court will also require additional independent evidence supporting the relationship in the form of a sworn document (an affidavit). The deponent should provide detailed information about the relationship as they knew it. Affidavits are usually provided by friends, medical professionals, accountants or anyone who can attest to the relationship.
If, however, the evidence is insufficient or contradictory, the Registrar of Probates may decline to recognise the relationship as a domestic partnership.
What happens if relationship cannot be proved ?
In circumstances where the Court is not satisfied that the domestic partnership existed, the partner’s application to administer the estate will likely be rejected. The closest next of kin will then be empowered to apply to administer the estate.
Other consequences
If the Court fails to accept the applicant’s relationship for the purposes of seeking to administer the estate, it is likely that the applicant will also not meet the definition of ‘domestic partner’ within Section 3(1) of the Administration and Probate Act 1958 (Vic), which means they would not receive benefit from the estate.
Whilst domestic partners are eligible to bring a claim against an estate for provision (or further provision), again, the partner would need to be able to satisfy the court of the existence of their relationship in that application.
Key take away points
Couples in a domestic partnership in Victoria should consider the registration of their relationship to avoid dispute after death. At a time of intense grief and loss, having to take steps to prove the existence of your relationship can be a difficult burden to meet.
Making a Will which recognises and provides for your domestic partner will also mitigate the risk of this scenario occurring.
If you and/or your partner need advice about your estate planning, please contact our team of lawyers on 03 9646 4477.
1Section 35(2) of the Relationships Act 2008 (Vic)
