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NSW De Facto Beneficiary - Spousal Rights and Entitlement to Legacy Interest?

Discussion in 'Family Law Forum' started by Tracey May, 18 June 2015.

  1. Tracey May

    Tracey May Member

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    My partner of 12 years died suddenly two and half years ago. The day after his death his brother and sister convinced police and the undertaker that he was single. I was in shock and was unaware of the implications at the time. His marital status is single on his death certificate and his sister is nominated as next of kin on police records. I found myself with no spousal rights.

    I was locked out of our home and have had to fight to get access to my important personal paper, belongings and shared things. My partner left me a monetary legacy in his will. Supreme Court proceedings were settled on 2nd March this year before the case was heard. It cost me $100,000. The Terms of Settlement were in my favour - the legacy was confirmed, I received 100% of the partner's Superannuation, access to some personal and shared items, and an order that the estate proactively market the property and pay interest at Supreme Court rate (8%) if I am not paid the legacy either immediately after the property is sold or after a year from the settlement date (02/03/16). By this time it will be three years since my partner's death.

    I have two questions.
    No. 1 - With regard to the following from Information about Law in NSW, State Library:
    If a gift of money (a legacy) is not paid within 12 months, the person to receive the money (the legatee) is entitled to interest on the money, unless the will provides otherwise. The current rate can be found in section 84A of the Probate & Administration Act 1898).
    Has my entitlement to this interest been overwritten or by the Supreme Court interest deal in the Terms of Settlement?
    If I am still entitled, how do I apply?

    No. 2 - I am applying to Birth, Deaths and Marriages to change my partner's marital status from single to de facto.
    If I am successful, what spousal rights do I have?
    Can I enter the property without the consent of the executor?

    Regards.
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi Tracey,

    Question 1

    Section 84A which you referred to, applies to monetary gifts, not properties. The reason the section applies is because money decreases in value. However, if the gift is in an asset, such as property, the value of the property will not necessarily lose money. This is why interest is not mandated on property gifts, only monetary gifts (e.g. money in a bank account, or cash). It is also much easier to transfer money than a piece of property (which you need to value, repair, sell etc), which is why if the money is not gifted within 12 months, interest is imposed. This is to encourage executors to gift monetary gifts faster and earlier.

    To answer your question, the section does not appear to apply to the estate property. The Supreme Court's 8% applies instead.

    Question 2

    The executor is the legal representative of the deceased. The executor is also the person appointed by the deceased to administer his will. You do not have legal right to enter the property, unless you co-own the property. This is because the executor is seen as the "legal owner" of the property now. However, the executive must deal with the property, and all your partner's assets, in accordance with the will. You are a beneficiary under the will. However, this does not give you any rights to your gifts until distribution. Before this time, you only have the right to ensure the executor manages the will properly, acts in the interests of all beneficiaries and distributes with a reasonable time.

    For more information, take a read of: Are You a Beneficiary of a Will? Know Your Rights - Blogs - LawAnswers.com.au. Note that this article primarily concerns QLD law, which may differ from NSW law. However, the general principles are the same.
     
  3. Tracey May

    Tracey May Member

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    Thanks for your response.
    Just to get the question correct:
    1. The gift in the will is cash. Should I have rights to statutory interest on the cash legacy in the will if not received after a year? It will be 3 years in December. If I'm eligible how do I apply?
    2. I have personal things in the house that I am not permitted to access even though they were listed on Supreme Court terms of settlement? Is it ok for the executor to prevent me from entering the house to collect the listed things? What if the things have been removed?
     
  4. Tracy B

    Tracy B Well-Known Member

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    Hi Tracey,

    Did these items previously belong to you or are they now left to you by the deceased (and enforced by the Supreme Court order)? If it is the latter, given distribution has not happened, you have little rights to the items. You are entitled to appear before court and ask court to require distribution within a period of time or to ensure the proper administration of the estate.

    As for your question on the interest rates, I would say the more specific rate on the Supreme Court order applies because the rate under legislation is the default rate.

    In any case, you should speak with a wills and probate lawyer about this. It should not take 3 years for distribution under normal circumstances.
     

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