LGBTI rights in challenging Wills: The issues LGBTI community face in estate planning and estate disputes

Originally written by Martin Mallon in his capacity as Estate Litigation Associate at Attwood Marshall Lawyers and first published by Attwood Marshall Lawyers on 13 July 2021. Reproduced here pursuant to the permission previously granted for Martin Mallon to use his published work for professional promotional purposes. Copyright in the original publication remains with Attwood Marshall Lawyers. This archival republication is not affiliated with or endorsed by Attwood Marshall Lawyers.

###Introduction###

Although gay marriage was legalised in Australia on 9 December 2017, the law has been slow to recognise the hardships continually felt by gay individuals and the general LGBTI community. ‘LGBTI’ is an umbrella term for those who identify as lesbian, gay, bi-sexual transgender or intersex. Such individuals are particularly likely to face discrimination or other mistreatment. If an LGBTI person’s parent disapproves of their identity or sexual orientation, their relationship with them may become increasingly strained. This sometimes leads to estrangement or rejection of the LGBTI child and subsequently being ‘unfairly’ left out of their parent’s Will.

There are several issues that people who identify as LGBTI should be cognisant about their rights generally and the specific challenges they may face involving estate planning and disputes.

###What are the challenges facing LGBTI individuals in estate planning and disputes?###

There are five fundamental challenges confronting LGBTI individuals in the context of estate planning and disputes. Note that whilst other issues may become apparent in estate disputes, these are the most common:

• What are the issues associated when an LGBTI individual dies without a will (intestate)
• What happens when an LGBTI individual dies without a Death Benefit Nomination (DBN)
• What are the rights of LGBTI persons in contesting a Will by way of a Family Provision Application
• What happens if an LGBTI child is excluded from their parent’s Will because of their sexuality
• The rights of people in same-sex relationships in challenging Wills

Each of these challenges can have devastating financial and emotional consequences for an LGBTI individual. For this reason, if you identify as LGBTI, it is important that you seek advice from an experienced lawyer who practices exclusively in estate planning and disputes to ensure that your rights are protected.

###What happens when an LGBTI individual dies without a Will (intestate)?###

It is estimated that more than 50% of Australians do not have a Will. This number is alarmingly high for anyone; however it may have a greater impact on LGBTI persons if they die without a Will (intestate).

Despite the legalisation of gay marriage in Australia, many couples choose not to marry for various reasons. Instead, same-sex couples may opt for a de-facto relationship.

Section 32DA of the Acts Interpretation Act 1954 defines a de-facto partner as:

1 or 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including:

(a) the nature and extent of their common residence; (b) the length of their relationship; (c) whether or not a sexual relationship exists or existed; (d) the degree of financial dependence or interdependence, and any arrangement for financial support; (e) their ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life, including the care and support of each other; (g) the care and support of children; (h) the performance of household tasks; (i) the reputation and public aspects of their relationship.

The Act states that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

However, there are differences and peculiarities in each state regarding the definition of a de-facto relationship in estate matters. For example, in Queensland section 5AA of the Succession Act 1981 states that a person is a spouse of a deceased person only, if on the deceased’s death:

• The person was the deceased’s husband, wife or registered civil partner; or
• The person was the deceased’s de-facto partner, as defined above; and
• Had lived with the deceased together on a genuine and domestic basis within the meaning of Acts Interpretation Act 1954, section 32DA for a continuous period of at least 2 years ending on the deceased’s death.

Since de-facto relationships are viewed differently from marriage in the eyes of the law, they can generate problems when relatives of the deceased person dispute the existence of the relationship.

If the couple were married and there was no Will, under the rules of intestacy in Queensland, the partner would benefit from the estate. Depending on whether the same-sex couple had children, the proportion of the estate to which the partner and children are entitled is calculated on a set formula. The formula used to determine the division of an estate when a person dies intestate varies in each jurisdiction.

Although acceptance of LGBTI people has increased in Australia, it is still relatively common for LGBTI people to experience rejection, discrimination, disapproval or estrangement from their families.

Under the rules of intestacy, if an LGBTI person dies without a de-facto partner, spouse or children, their estate will be split equally between the deceased’s surviving parents. Understandably, that is often the last thing in which that person would have intended.

Without a Will, there is a possibility that the late partner’s parents will dispute that a de-facto relationship existed. In this scenario, the surviving partner will be required to establish the existence of a de-facto relationship outlined in legislation. This can involve complex arguments, stress and protracted litigation.

The take-home message for LGBTI persons is that if you don’t have a Will, we recommend that you seriously consider instructing a lawyer who practices in this area who can assist you in protecting your interests and ensure that your intentions are honoured upon your death.

###What happens when an LGBTI individual dies without a Death Benefit Nomination (DBN)?###

It is a common misconception that your superannuation, or your life insurance/death benefits, automatically forms part of your estate when you pass away. A “Death Benefit Nomination” (DBN) is a form given to your superannuation fund that instructs the trustee of the fund to pay your benefit to a nominated person or persons.

There are different types of nominations that you can elect to have, and it is important to speak to an experienced estate planning lawyer who can help you determine which type of nomination will best suit your needs.

Read more:

Binding Death Benefit Nominations and SMSF’s Super mistake: Financial planner faces damages claim after preparing faulty binding nomination

If you do not have a nomination in place when you die, your superannuation fund will determine the person(s) they believe most appropriate to receive the funds pursuant to their Deed and the Superannuation Industry Supervision Act 1993 (Cth). The trustee’s decision might be significantly different from your Will, or who you wanted the funds to go to if you had a nomination in place. Even if you are in a de-facto relationship, your partner will likely need to prove to your superannuation fund that they were financially dependent on you and that they satisfy the definition of a ‘de-facto partner’. These processes are generally time-consuming and stressful for those involved.

###LGBTI rights in contesting a Will by a Family Provision Application###

People who identify as LGBTI are at a greater risk of mental health problems which have been linked to a range of factors including discrimination, rejection, lack of support or social isolation.

As a result, LGBTI persons may not be aware of their rights when they have been left out of a Will or not adequately provided for by a family member or loved one.

###What is a Family Provision Application?###

A Family Provision Application is a process that allows certain individuals to contest a Will for a share or larges share from the estate of the deceased person.

Under S.41 of the Succession Act 1981 (Qld), if you are an eligible person, you may challenge a Will on the basis that you have been left without adequate provision for your proper maintenance and support, by making a Family Provision Application.

A Family Provision Application provides, to an extent, some support for LGBTI individuals who find themselves dealing with the aforementioned issues.

The rules and application of Family Provision Applications differ in each jurisdiction, and it is vital to see advice from a lawyer who practices exclusively in this area as soon as possible to ensure your rights are protected.

###Who is eligible to contest a Will?###

Only certain individuals are eligible to contest a Will in Queensland, under S.41 of the Succession Act 1981, including:

The deceased’s spouse The deceased’s child; and The deceased’s dependant

Note that eligibility criteria are specific to individual jurisdictions. In New South Wales, there is an additional category for eligibility under which an LGBTI person can contest a Will if they were:

• A person who was, at any particular time, wholly or partly dependent upon the deceased at the time of their death and was either:

a grandchild of the deceased person; or

• at that particular time or any other time, a member of the household of which the deceased person was a member.

###What are the time limitations for bringing a Family Provision Application?###

There are strict time limitations that apply in Family Provision Applications.

In Queensland, a claimant has 6 months from the date of death to provide written notice to the executor or administrator of the estate of his/her intention to bring an application for further provision against the estate. If you fail to provide notice within this time limit, your rights may be significantly impacted and prejudiced (see S.44(3)).

An applicant must then file formal Court proceedings within 9 months from the date of death. If you do not lodge formal Court proceedings within this timeframe, your right of action may be lost forever.

Each State and Territory has different timeframes and it is important to obtain legal advice from a person who practices in this area as soon as possible.

###How does the Court decide the outcome of an application?###

There is a two-step process involved in a claim in which the Court will ask:

• Has the applicant been left without adequate provision from the estate for his or her proper maintenance and support?
• If so, what provision ought to be made from the estate

If the individual is successful at the first stage of the test, the Court will consider a number of factors in determining what/if any provision ought to be made in favour of the applicant. These include but are not limited to:

• The applicant’s financial position, now and into the future;
• The applicant’s physical and mental health;
• The applicant’s lifestyle before the deceased passed away;
• Any competing claims;
• Any contributions the applicant has made to the deceased’s estate;
• The plaintiff’s contribution to the estate property and/or funds of the deceased;
• The relationship between the applicant and the deceased;
• Any other matter that the Court determines is relevant.

Each case is determined on its own merits and other considerations can be taken into account.

###What happens if an LGBTI child is excluded from their parent’s Will because of their sexuality?###

It is not uncommon for an LGBTI person to be left out of their parent’s Will because their relationship with their parents has broken down. For reasons relating to their sexuality, parents may elect to exclude their LGBTI child in their Will, or they provide inadequate provision. In some cases where the LGBTI child and parents reconcile, parents forget to update their Will after removing that child.

On discovering their child is LGBTI, parents sometimes estrange them completely.

Losing a parent is extremely upsetting, and for anyone with unresolved issues or estrangement, it can leave you feeling an array of emotions including regret, guilt, and sadness. To make this more difficult to comprehend, if you discover you have been excluded from your parent’s Will, or provided inadequate provision, it can be very distressing and traumatic for the estranged child.

As a child of the deceased, an LGBTI individual who has been estranged with their parent/s, falls into the categories of eligible persons who has standing to contest a Will by way of a Family Provision Application.

It has been established law that estrangement between a parent and child, does not automatically disentitle a child from bringing a claim for further provision from the estate (Palmer v Dolman [2005] NSWCA 361).

This means that if an LGBTI person and their parent have been estranged, this will not prevent that person from challenging a will. Each case is different and will turn on its own merits.

There are strict timeframes that apply and they differ in each jurisdiction. As such, if you feel aggrieved, you should immediately seek advice to find out your options.

###What happens when a person is left out or receives inadequate provision under a Will by a same-sex partner?###

If an LGBTI person was in a same-sex de-facto relationship with the deceased, they have standing to file a Family Provision Application against the estate. The recognition of de-facto relationships is not based on, or affected by, gender.

However, as set out above, the surviving partner must first establish that they meet the definition of a de-facto partner.

In Hooper v Whiten [2002] NSWSC 1071 the plaintiff, filed a Family Provision Application in New South Wales against the deceased estate claiming inter alia that he was in a same-sex de facto relationship with the deceased at the time of his death. In this case, the plaintiff was unsuccessful on the basis that the Court was not satisfied that Mr Hooper was in a de-facto relationship with the deceased or fell into any other eligible category of people who could claim against the estate.

The 2010 case of Burton v Moss [2010] NSWSC 163 highlights the potential outcome for LGBTI individuals who contest a Will under the guidance of an experienced lawyer. The applicant successfully established that he was in a de-facto relationship wit the deceased at the time of his death and therefore an eligible person to claim against the estate. The applicant successfully argued that he was left without adequate provision for his proper maintenance and support. The Court ordered that he receive the lion share of the estate and his costs.

The case indicates to LGBTI persons, who have been excluded from a Will or who have not received adequate provision, that they may benefit significantly from contesting a Will with the correct legal advice.