News and Articles

The Death of a De facto

By
Gennadi Dobrinski
and 
Nensi Tsyan

29 May, 2019

Research suggests that 52 per cent of Australians do not have a will. This is a worrying trend given that by passing away without a will (i.e. dying intestate) they give up their power to control who benefits from their estate.

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The above statistic is particularly worrying when considering the other rising trend of Australians: marrying much later or not at all - choosing to remain de facto partners. In the context of a de facto partner dying intestate in NSW, this means that the surviving partner needs to produce evidence to the Supreme Court of NSW to convince it that they were in fact in a de facto relationship to the exclusion of all others. They also need to serve this evidence to anyone who would have inherited from their partner’s estate had they not been around!

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Once the Supreme Court accepts the status of a de facto relationship, the applicant will generally be the person most entitled to apply for Letters of Administration in NSW, and will generally be entitled to most of their former partner’s estate.

Am I a De facto?

Whilst there is no strict legal definition of “de facto partner”. In the context of wills and estates, the Supreme Court of NSW takes into account section 21C of the Interpretations Act 1987 which gives the following factors considerations:

  • The relationship is actually registered within the meaning of the Relationships Register Act 2010
  • Living together
  • Not married together or related by family
  • How long the relationship lasted
  • How long the couple lived together
  • The existence of a sexual relationship
  • Financial independence and interdependence
  • Sharing property and holding assets together
  • Sharing expenses and earnings
  • Supporting children together
  • Sharing everyday domestic tasks and duties
  • Visiting celebrations and family gatherings together

National Probate and Estates Group is the most experienced firm in NSW in representing de facto spouses in making applications for Letters of Administration.

National Probate and Estates Group is the current #1 provider of Letters of Administration in New South Wales — as calculated during the first quarter of 2019 among all private law firms from the Supreme Court of NSW's online notice registry.

Next Steps:
Read about Will Drafting
More about Letters of Administration
Get a fixed-fee quote for Letters of Administration
Contact Solicitor Gennadi Dobrinski