Posted by: Kylie Shaw
Background
In
the case of Spencer v Burton [2015] QCA 104, Sharon Burton and Kent Spencer
were in a romantic relationship for 13 years, however, those 13 years were not
perfect. Kent had an affair in 2009 which resulted in an end to their
relationship but they later reconciled.
In
November 2010, Sharon was diagnosed with cancer and passed away in July 2012.
They were never married and had no children during the course of their
relationship.
At
the time of Sharon's death, her estate was worth approximately $800,000.00.
Sharon did not have a will. This meant she died intestate and that led to
serious complications.
On 12 August 2012, Kent obtained
Letters of Administration on Intestacy of her Estate on the basis that he was
the deceased's de facto partner.
Five months later on 7 December
2012, the deceased's mother, Daphne Burton filed an Application seeking a
declaration that Kent Spencer was not a de facto partner of the deceased and
also sought orders that the Letters of Administration on Intestacy granted to
him be revoked and that a replacement grant of Letters of Administration by
granted to her.
The court takes account of several factors in
determining whether a person is a de facto partner and this is where
complications can arise. It can be very difficult in weighing up and balancing
the competing factors which include:
- Nature and extent of their common residence;
- Length of their relationship;
- Whether a sexual relationship existed;
- Degree of financial dependence or interdependence, and any arrangements for financial support;
- Ownership, use and acquisition of property;
- Degree of mutual commitment to a shared life including care and support of each other;
- Performance of household tasks;
- Reputation and public aspects of their relationship.
In the principal proceedings, the
Court found the respondent, Kent Spencer, had not been the de facto partner of
deceased, under s32DA Acts Interpretation
Act 1954 (Old) and was thus not entitled to share in estate on intestacy.
The Court also revoked the Grant of Letters of Administration in favor of the
Deceased's mother, Daphne Burton.
Decision on Appeal
On Appeal, the Applicant Kent
Spencer argued that the primary judge erred in the
application of the criteria set out in s 32DA of the Acts Interpretation Act,
in particular attributed greater weight to financial and property matters.
The Appeal Court stated that the
criteria in s 32DA are all to be weighed up and analysed together with any
other factors or circumstances that the judge considers relevant. One criterion
is not to be considered as more significant than the other.
The Appeal Court found the primary
judge did place an overemphasis on financial and property matters and a discounting
of the other indicia which was clearly present. Appeal was allowed.
The outcome of this case shows that the relevant factors in determining
whether a de facto relationship exists is complicated and each situation must
be considered on a case by case basis. There is no ‘one size fits all’
solution.
All this came about primarily because Sharon died without a valid Will.
