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Establishing a de facto relationship in Will dispute

Wills and Estates: 23 March 2019

Chan v Waldemar Mazurkiewicz (As Administrator of the Estate)[2015] WASC 432

Under Australian succession laws, 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, problems often arise in proving the existence of a de facto relationship, where other relatives deny the relationship or seek to characterise it in a different manner.

In these cases, which are often bitterly contested, the Court will conduct a thorough examination into every aspect of the couple's lives in order to determine whether or not a relationship existed, and whether it continued to the date of death.

In determining whether a de facto relationship exists, the Court will look at the following factors, which are similar in every State:

  1. the length of the relationship;
  2. the nature and extent of common residence;
  3. whether there is, or has been, a sexual relationship;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support;
  5. the ownership, use and acquisition of property (including property owned individually);
  6. the degree of mutual commitment to a shared life;
  7. whether they care for and support children; and
  8. the reputation and public aspects of the relationship.

The issue was considered most recently by the Western Australian Supreme Court in Chan v Waldemar Mazurkiewicz. In this case the deceased had died leaving no children or relatives other than his brother, Waldemar. The Plaintiff, Mrs Chan, claimed to be entitled to the deceased's estate pursuant to intestacy, as his de facto partner.  

The Plaintiff commenced a relationship with the deceased in 1993. They cohabited together as a couple for 15 years until early 2008. In this time they had a sexual relationship, shared meals together, attended functions together and shared their income. The deceased would socialise with the Plaintiff's friends. They acquired furniture together.

In early 2008, when the deceased's wife became ill, he moved into her home to care for her. In July 2008, the deceased's wife died, but he did not recommence living with the Plaintiff. They lived in separate homes, but continued their relationship and sometimes stayed overnight in each other's houses. In August 2010, the Plaintiff learned that her sister in China was ill, and decided to go to China to care for her. The deceased told the Plaintiff he had arranged for another woman to live in his home and care for him while she was in China. In September 2010, the woman, Elzbieta, moved in with the deceased. The Defendant's evidence was that Elzbieta was more than a carer, and she shared an intimate relationship with the deceased.

The Plaintiff did not visit the deceased after Elzbieta moved in, and left for China in November 2010. There was no attempt by the Plaintiff to contact the deceased while she was in China. The Plaintiff returned on Perth on 6 December 2010 but did not try to contact the deceased until her birthday on 24 December 2010, as previously arranged with the deceased. It was then that she discovered the deceased had died on 11 December 2010.

The Plaintiff argued that a de facto relationship continues until one party forms an intention to end the relationship, acts on that intention, and communicates that intention to the other party. She argued that here, there was no communication of an intention to end the relationship, and therefore the relationship continued until the deceased's death.

The Court did not accept this argument and found that the existence of a de facto relationship at any given time must depend on an overall assessment of the facts, in consideration of the above factors.

The Court concluded that no de facto relationship existed from 2008 to the date of death, as in this period they did not reside together, were financially independent, and did not have a mutual commitment to a shared life. There was very little communication between them after Elzbieta moved in with the deceased. The Plaintiff's claim was dismissed.

The decision shows that each case involving the determination of a de facto relationship will turn on its own facts, and involve an intimate examination of each period of the parties' lives, having consideration to the factors in the legislation. The same considerations will apply regardless of whether the parties have communicated to each other their intention to end their relationship and their subjective beliefs in this regard. Specialist legal advice should be sought in any case where the existence of a de facto relationship is in dispute.

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