Surviving spouses – including de facto spouses – receive a bulk of their partner’s estate if they die without a will.

But what features are required to be established to prove a de facto relationship when other potential beneficiaries contend otherwise?

shutterstock 431351380Jorje Raphael of Perth died without a will in July 2022 shortly after the diagnosis of a terminal illness.

She left an estate consisting of cash and vehicles of an unknown amount, other than it was less than the spousal intestacy threshold figure of $705,000.

Jorje had no children. In issue was whether she was survived by a spouse.

The W.A. rules of intestacy specify that estates of less than the threshold sum pass entirely to a surviving spouse or otherwise – in the context of this estate – to the deceased’s siblings.

Peter Emerson claimed to be Jorje’s spouse.

Jorje and Peter had married in 1985 and together they had bought a property as joint tenants in Bedfordale in the Darling Range south-east of the capital.

They separated in 2008 and were divorced in 2011. They continued however to jointly own the Bedfordale property. At no time was the ownership status changed and on Jorje’s death, title passed to Peter under the law of survivorship.

After separation Peter had continued to live in the main house at the property. Jorje left to work in Broome.

However, when Jorje lost her job in 2013 she moved back to the Bedfordale property and took up residence in the self-contained flat separate to the main residence where Peter lived.

Peter swore that from some time in 2015 his and Jorje’s relationship “resumed in much the same way as it had been during their married life”.

They spent considerable time together including holidays, meals, evenings and weekends, he recounted.

Peter also claimed they referred to each other affectionately; exchanged valentine, Christmas and birthday cards; expressed their mutual love; and cared for each other during illnesses.

Two friends gave evidence that they regarded Peter and Jorje as a couple due to the affection they observed between them.

Justice Marcus Solomon noted though that Peter and Jorje lived independently of each other, apart from a short period after Jorje had been diagnosed as terminally ill.

He further observed they maintained separate finances, but that Peter did provide “significant sums” in providing care for Jorje and at one point they had intended to purchase a new property together in Shoalwater.

Stephen – Jorje’s brother – who had moved from South Australia to live with Jorje in the last few months of her life, vigorously disputed his claims.

In August 2022, less than 5 weeks after Jorje died, Stephen applied for and obtained a grant of letters of administration on intestacy without any reference to Peter.

In response, Peter filed proceedings for an injunction to restrain Stephen from administering the estate and requested an urgent hearing that same day.

In the absence of Stephen’s solicitors who were unable to appear on such short notice, Justice Solomon ordered an injunction on an interim basis pending a contested hearing a week later.

Justice Solomon considered in detail the factors set out in s 13A of the Interpretation Act 1984 (WA) – very similar to the analogue Queensland legislation – to decide whether Peter had presented an arguable case as to his de facto status.

He held that – notwithstanding the absence of some defining features and that his case “could not be characterised as strong” – Peter had done enough to demonstrate that there was a serious question to be tried.

In deciding the “balance of convenience” he noted there was little risk that the estate assets would dissipate if the administration delayed; and that Stephen had failed to notify Peter of his LOA application.

“The consequences of not granting interlocutory relief are likely to be more significant than if I were to grant it,” he observed.

This interlocutory decision does not decide the substantive issue. Unless the parties come to agreement otherwise, they will proceed to a trial of the issue as to whether in fact Peter and Jorje were de facto spouses.

Emerson v Raphael [2022] WASC 309 Solomon J, 6 September 2022