ISSUES
- Was Mrs SD a de facto, within the meaning of s32DA of the Acts Interpretation Act?;
- Was a document left by the deceased with his papers following his death capable of being an informal will?
- If the informal will was admitted to probate, did s15B operate to revoke gifts to Mrs SD?
FACTS
The testator, Mr HRA died on 26 January 2020. He never married and had no children.
It was not in dispute that from about 1995 until 2012 he was in a de facto relationship with Mrs SD. They lived together on a rural property out of town.
Mr HRA’s cognition declined and in 2011, he was diagnosed with dementia and Mrs SD felt she had no option but to move into town for her own needs. It was also accepted that at that time, neither Mr HRA nor Mrs SD intended the move would end their relationship.
The question was whether they were still in a de facto relationship in 2020, when Mr HRA passed away.
The outcome of that particular issue had an impact on several other aspects of the case.
First, if Mrs SD was a de facto, she had priority to take out a Grant.
Second, Mr HRA had left an informal document which may have been admitted to probate with the aid of section 18 of the Succession Act. However, it provided for gifts for Mrs SD and if the de facto relationship no longer subsisted, then s15B of the Succession Act may apply to revoke any gift in favour of Mrs SD.
So, the determination of the de facto question would affect who could take out the Grant, what kind of Grant could be taken out (letters of administration on intestacy or grant of probate) and who would benefit.
Lyons SJA looked carefully at the definition of de facto set out in s32DA of the Acts Interpretation Act, which is imported into the Succession Act by section 5AA.
That definition has a number of indicia which are to be considered when determining whether a de facto relationship exists. In addition, s5AA(2)(b)(ii) of the Succession Act provides that the couple must be living together on a genuine domestic basis for at least 2 years ending on the death of the deceased.
So, the particular issue was whether the relationship which had existed, still existed during the last 2 years of Mr HRA’s life.
Mrs SD (by her attorney) argued that she and Mr HRA were an “illness separated de facto couple”. In particular, the relationship still subsisted because neither party formed an intention to affect a permanent separation.
After noting that the onus was with Mrs SD to prove, Lyons SJA went carefully through the indicia in s 32DA and considered them in the context of the last 2 years of Mr HRA’s life. She found
- There was no common residence in the last 2 years;
- There was a previous long relationship, dating from 1995, but the last visit from Mrs SD was in 2016;
- A sexual relationship was impossible in the last 2 years;
- They were not financial dependent on one another in the last 2 years;
- They never owned any property together;
- There was no evidence of a mutual commitment to a shared life together in the last 2 years;
- There was no care and support of children,
- There were no shared household tasks in the last 2 years;
- There was no evidence of Mrs SD publicly declaring that she was in a relationship during the last 2 years of Mr HRA’s life. She described herself as “single” on her tax returns from 2012 to 2019 and didn’t mention Mr HRA to her solicitor when she made a will in December 2012.
The matter was made more difficult by the fact that Mr HRA had lost capacity in 2013, and so lacked the ability to himself do many of the things which would meet the indicia required. Mrs SD did not have capacity by the time of trial, and her evidence was received by a statutory declaration made in 2019.
Notwithstanding the challenges this presents in such a case, there was limited evidence that Mrs SD maintained any continuing interest in Mr HRA’s life or his care during the last 2 years of his life.
Lyons SJA also spoke of “the fundamental fragility of a de facto relationship” noting the persistence of the indicia are fundamental to the continuance of the de facto relationship. That is to be contrasted with a marriage, which subsists until dissolved. [1]
In fact, Lyons SJA said:
“It would seem to me that whilst Mr HRA could not contribute in any way to an ongoing relationship after 2013, it is also clear that whilst Mrs SD did have the capacity and the ability to make an objective commitment to him in some objective way, she simply chose not to do so. In my view, Mrs SD made a choice to end the relationship, she did not nurture or maintain it in any way. In short, it did not in fact continue. In my view there was no objective, observable manifestation of that relationship in the relevant last 2 years of Mr HRA’s life.”[2]
DECISION
Ultimately, Lyons SJA found that Mrs SD and Mr HRA were not in a de facto relationship.[3]
The next issue for determination was whether the informal document was capable of being admitted to probate, pursuant to s 18 of the Succession Act.
The document was prepared and signed by the testator on 12 February 2010. It was not witnessed, did not appoint an executor and did not dispose of all of his estate. It did express a wish for a particular property to go to Mrs SD.
Lyons SJA decided it was unnecessary to determine whether the document should be admitted to probate, because of the effect of s15B of the Succession Act and her finding that Mrs SD and Mr HRA were not in a de facto relationship.
That section provides that the ending of a de facto relationship has the effect of revoking a provision in a will appointing a de facto spouse as an executor and a gift to that de facto spouse.
As the informal document did little more than make the gift to Mrs SD, did not appoint an executor or dispose of the balance of Mr HRA’s estate, there was little point in making a grant of it.
Instead, Letters of Administration on Intestacy issued to Mr HRA’s niece and nephew, who each took an equal share of the estate on intestacy.
Read the full decision here.
Read the judgement on costs here.
[1] At [42], quoting a passage from S v B [2004] QCA 449.
[2] At [69].
[3] At [83].