Lawyer Northern Beaches Wills & Estate Beach Feet by Matthew Wheeler

Same Sex Couples and Estate Litigation!

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.

Mr Yesilhat met the deceased, Mr Sclavos, 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.

This case progressed in a recent hearing, decision of which was made by Slattery on 9 June 2017 – Calokerinos, Executor of the Estate of the late George Sclavos v Yasilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Scalvos [2017] NSWSC 666.

  1. The deceased executed an informal will of October 2012 that was already admitted to probate and he knew and approved its contents. The deceased intended an informal will, to embody his final testamentary intentions. An application for revocation of grant of probate to the defendant refused.
  2. A de facto relationship was found not to exist, between the plaintiff and the deceased. The plaintiff was not dependent upon, or in a close personal relationship with the deceased. The plaintiff was not an eligible person, to make a claim under Succession Act, s 57 against the deceased’s estate. The plaintiff’s Succession Act claim fails.
  3. The plaintiff must repay all monies the deceased advanced to him, before the deceased’s death, which were all loans, not gifts. The plaintiff must restore to the estate all monies he transferred from the deceased’s estate to himself after the deceased’s death, which were transferred without authorisation and fraudulently.

Essentially Mr Yesilhat was found not to a de facto of the deceased and therefore not an eligible person in these proceedings.

Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you, on how to successfully challenge a Will if you have not been adequately provided.

 If you are living on Sydney’s Northern Beaches and surrounding Peninsula and need expert legal advice, call The Northern Beaches Lawyer, today on 9221 0341 for an appointment close to home. 

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