A Shared Life: Family provision claim by same-sex defacto of 30 years

For those of my readers who are not familiar with estate litigation matters, it is common for parties to apply to the Court to “sign-off” on negotiated outcomes following a private mediation.  This is particularly so where the estate property is comprised of real property.

As such, I thought it worthwhile to write a short note on the latest case of Roberts v Bourke & Anor [2017] QDC 91  where Kefford DCJ made final orders in relation to a family provision claim by a de facto partner of 30 years.

Rosslyn Elliot passed away on 5 March 2015 and was survived by her de facto partner, Stephanie Roberts, with whom she had shared her life since 1985.  Ms Elliott had no children, was never married and had left her partner a right to reside in the property they shared, and left the residual of her estate to her nephew, Gene Elliott, who is also one of the two executors.  Ms Roberts and Ms Elliott had purchased their shared home together and held a half interest each as tenants in common.  Ms Roberts had contributed her savings to the purchase of the home and Ms Elliott had borrowed money for her share.  They shared a joint bank account and otherwise lived in a genuine domestic basis.

The net value of Ms Elliott’s estate was valued at $310,303.83.

Ms Robert’s assets were approximately $745,021.80 which included her interest in the house and her own superannuation of approximately $419,862.00.

In addition to the estate composition, Ms Elliott had also left a SunSuper superannuation policy valued at $515,794.95.  In August 2016, SunSuper had decided to pay the whole of the superannuation account to Ms Roberts, as Ms Elliott’s dependent.  Mr Elliott, as the residual beneficiary, disputed the decision and sought a review.

The parties came to a resolution to provide for further provision for Ms Roberts.  In summary, the resolution comprised of:

  • Ms Roberts to receive Ms Elliott’s half share of their shared home;
  • Ms Roberts to receive a further bequest of $150,000.00;
  • Mr Elliott to withdraw his dispute over the superannuation proceeds;
  • Ms Roberts to transfer the balance of the superannuation proceeds, after retaining $150,000.00 comprising the further gift above, to the estate.

In summary, Ms Roberts received a value of $360,000.00 in further provision from the estate with Ms Roberts paying her own legal costs of the claim of approximately $40,000.00.

The Court said, at para 16:

I am satisfied that the proposed orders to give effect to the compromise are, in all the circumstances, appropriate provision for the proper maintenance and support of the applicant from the deceased’s estate.

You can read the case here.

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