Under Victorian law, de facto partners who are not legally married have the same rights as legally married spouses in relation to inheritance of assets under intestacy (where there is no Will) as well as in contesting a Will.
However, to contest a Will under the Administration and Probate Act 1958 (Vic) (‘the Act’), it is not enough to simply announce that you are a domestic partner. You instead must prove that you are in a ‘genuine domestic relationship’ and thus part of an ‘eligible class of person’ that can contest a Will.
It is not uncommon for problems to arise in proving the existence of a de facto relationship, where other relatives deny the relationship or seek to characterise it in a different matter. For this reason, the 2014 amendment to the Act saw Victoria attempt to streamline the eligibility criteria by listing two overarching elements the apparent de facto partner must prove.
- That they have been living with the deceased at the time of their death, as a couple on a ‘genuine domestic basis’; and
- Either had lived with the deceased in that matter continuously for a period of at least 2 years immediately before the person’s death; or
- Is the parent of a child with the deceased who was under the age of 18 at the time of their death
What classifies as a ‘genuine domestic basis’ is by no means clear cut, and is very dependent on individual circumstances. Some factors assessed include the financial position of the applicant, the size of the Estate, the sexual relationship between the applicant and the deceased, competing interests of others and the conduct of the eligible before and during the litigation process.
Case study – Elements in proving a De Facto Relationship
The recent Victorian case of Bell v Barley  is a perfect example of what evidence is required to prove a ‘genuine domestic relationship’ and thus be eligible to contest a Will.
The Estate dispute had two key issues; whether an informal Will was intended by the deceased to be his final Will, and whether the applicant could claim to be the deceased’s domestic partner at the date of death.
The informal Will did not get up, which rendered the deceased’s old Will valid and excluded the applicant. However, as the applicant successfully proved that she was the domestic partner of the deceased at the date of death, this rendered her eligible to contest the Will and claim further provision.
The applicant submitted that her relationship with the deceased was one of a genuine domestic basis because:
- They commenced their relationship in October 2010, living together from the end of 2011 until the deceased’s death in 2016. They commenced a sexual relationship from the outset.
- Financially, they shared the mortgage of the property and the applicant had her name on the Title.
- She controlled all their finances. She had access to all the deceased’s bank accounts and authorisation to act on behalf of the deceased with everything from superannuation to his pension.
- She completely financed their livelihood with income she received as a marketing manager, paying the bills and purchasing all inventory and assets for the deceased’s business.
- She cared for the deceased for the duration of their relationship, as he had health and mental issues. She would make his breakfast every morning, organised his day and often joined him for daily jobs.
Together, this evidence was enough to successfully prove a de facto relationship – but again, there are no definitive rules to suggest that this same set of evidence, when weighed up against other factors would hold in a different circumstance.
All we do know is that the court decides each case on its own merits after balancing the relevant statutory criteria with the impugned individual circumstance.
Thus, we recommend you get in contact with the team at Hentys Lawyers today, so we can help you assess your claim.
 Administration and Probate Act 1958 (Vic) s 91(2)(b)
  VSC 24