Same sex couples actually have the same rights as heterosexual couples when it comes to Estate Litigation. This is because of the definition of “eligible persons” under the Succession Act of New South Wales. Only people who fit into one or more of the various classes of “eligible persons” are able to make a claim on a deceased Estate.
One group of eligible persons are those who were in living in a de facto relationship at the time of the deceased’s death. You will be considered de facto partner of another person (whether of the same sex or a different sex) if you are in a registered relationship with the other person or if you are in a de facto relationship with the other person.
You are in a de facto relationship with another person if you have a relationship as a couple living together and you are not married to one another or related by family.
De facto relationships can exist even if one of the persons is legally married to someone else or in a registered relationship with someone else. To determine whether you are in a de facto relationship with another person, the Court will consider a number of facts including the duration of the relationship, the nature and extent of your common residence with the other person, the degree of mutual commitment to a shared life, as well as the degree of financial dependence or interdependence.
In a recent decision of the New South Wales Supreme Court, Yesilhat v Calokerinos, the Court had to consider whether a gay couple were in a de facto relationship even though they did not live together in a traditional manner and one of them was married.
Mr Yesilhat met the deceased, Mr Calokerinos, when he was 17 years old and the deceased was around 50 years old. Mr Yesilhat stated to the Court that he had a 14 year relationship with the deceased. The deceased owned a pharmacy that he appeared to treat as his home and Mr Yesilhat claimed that he routinely visited the deceased’s pharmacy three to four times per week, but they both kept their relationship a secret from their family, friends and business associates.
The Court found that it was arguable that the deceased and Mr Yesilhat were in a de facto relationship, even though they didn’t share a traditional common residence. This decision meant that Mr Yesilhat was an eligible person to make a family provision claim on the Estate of the deceased.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on how to successful challenge a Will if you have not been adequately provided for in a Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today for an appointment close to home on 9221 0341.
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