Intestacy Dispute

The two most common disputes when it comes to intestacy are launched by step-children and domestic partners. The two cases below demonstrate both the concept of a step-child not automatically being considered as a child under the statutory scheme, and the difficulty surrounding the definition of a domestic partner.

Szarvas v Tizzano; Muller v Tizzano

Facts

In a 2014 Victorian Supreme Court case, the deceased died intestate and was survived by two biological daughters and a step-son. Letters of administration were granted to the daughters and the estate was divided between them. The applicants, the deceased’s ‘unregistered domestic partner’ (1st applicant) and step-son (2nd applicant) sought further provision from the deceased’s estate claiming that they both had not adequately been provided for. [1]

The deceased had a sexual, affectionate and intimate relationship for just over 4 years with the first applicant. The first applicant submitted that for the entire period she acted as the deceased’s partner in social situations, lived with him for 2 of those years and contributed to household expenses during that time. She was in good health and a good financial position.

The step-son’s relationship with the deceased was characterised by mutual affection and had many aspects of interaction which might occur between father and son over the 25 years. He supported the deceased after his mother’s death and his financial situation was poor.

Decision

First Applicant – As the deceased and first applicant were not living together at the deceased’s time of death, and she was in a good financial situation, the judge could not see any reason for the deceased to provide. This being that the judge did not consider the first applicant’s relationship with the deceased one to constitute a ‘domestic partnership’ and consequently her plea failed.

Second Applicant – The deceased was thought to be aware of the step-son’s financial situation and this together with the judge’s satisfaction that their relationship mirrored one of ‘father-son’ was enough to satisfy the judge that the deceased should have provided for him. Thus, the step-son’s application was successful

Disputing Case

On the other hand, another Victorian Supreme Court case in 2009 found for an applicant who even though she did not live with the deceased, satisfied the court to be an unregistered domestic partner. [1] This result although precedes, blatantly contradicts the reasoning in Szarvas v Tizzano and demonstrates the discretion judges have once they take into consideration the individual facts of each case.

The judge followed the case of Dow v Hoskins[3] where it was said that ‘the determination of whether a person was living with the deceased should not be construed on a narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex’.  Here, the fact that that the applicant was in a loving and caring relationship with the deceased for over 20 years, and a substantial number of witness affidavits confirmed such, meant that her claim was successful. This being that although they may not have ‘physically’ been living together, their emotional connection subsidised the geographical constraints.

Evidentially, intestacy is a confusing and slippery slope and individual circumstances are key. The easiest way to avoid the various pitfalls presented by intestacy is simply to ensure that you have a will that is kept up to date and includes all of the significant assets you possess.

In light of the above, if you think that you may find yourself in an Estate or Will Dispute, or needing to Challenge a will please do not hesitate to contact the team at Hentys Lawyers today.


[1] Szarvas v Tizzano; Muller v Tizzano [2014] VSC 620
[2] Re Estate of Sigg (dec’d) [2009] VSC 47.
[3] [2003] VSC 2006

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