Kyle McCabe on the 2GB discussing Wills & Estates 9 October 2021

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CS – Chris Smith/KM – Kyle McCabe /C1,2,3, etc – Callers

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Listen to the Podcast

Read the Transcript below:

CS       Got a stack of questions from listeners in the past week, here’s one from Mary, my partner who I’ve lived with for 5 years recently passed away but never updated his will to include me, can I make a claim against his estate?

KM     Well, that’s a good question, Chris, I mean the short answer might be yes, most likely Mary could make a claim against her deceased partner’s estate, she may qualify as a de-facto partner, they may have been in a de-facto relationship, you’d need to look at the circumstances of their relationship, so there’s no hard and fast rule about what qualifies as a de-facto relationship, all the factors that are looked at include the duration of the relationship, the nature and extent of the common residence, how they own their property, whether it’s together to separately, the degree of mutual commitment to a shared life is how the courts have decided another factor is. The care and support of any children and probably quite an important one, but the reputation and public aspects of a relationship, so they all get thrown into the mix and a court will in the end come up with an answer as to whether or not is was a de-facto relationship and that may mean that she is eligible to make a claim.

CS       And it wouldn’t be uncommon for someone, even though they’re together to not get around to updating their will.

KM     Very common, in this day and age de-facto relationships can form later in life and it’s very common that people just forget to update their will and when that happens it can cause no end of drama.

CS       And following on from that Kyle, can two people be considered to be in a de-facto relationship if they don’t live together?

KM     They can be which is probably something that not a lot of people realise but that the, whether or not people are cohabitating together is only one of the factors in determining whether people are in a de-facto relationship, so there’s been numerous cases and I think this also broaches into family law as well as wills and estates, but where two people might have their own separate residences such as if they’ve got together later in life after they’ve already, they own property and they might spend a lot of time with one another during the week and there might be joint bank accounts and they might care for children together, things like that, and in those circumstances yes you can be considered to be in a de-facto relationship even though you don’t live together.

CS       Right, so the property isn’t necessarily the determining factor., that’s really interesting. Thank you so much for that Kyle. Great information for us. 

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