SA Rights to Property When Partner Died Without a Will?

Discussion in 'Wills and Estate Planning Law Forum' started by Fiona Howith, 23 September 2019.

  1. Fiona Howith

    Fiona Howith Member

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    History to Date

    I’m not sure where to start but I guess the beginning would be the best place. Firstly, I guess I’m looking for advice on several different things.


    1. The estate of my late fiancé.


    2. The family partnership between C and myself. (C and F Degenhardt)


    3. The lack of support, information and action from my current lawyers.


    4. The lack of support, information and action from the police.


    5. The business partnership between C & F Degenhardt & CCH Contracting.


    6. Where I stand with recovering my property from C’s brothers.


    A few key points to note:


    · C died without a will.


    · The partnership business is a primary production business.


    So, I will start with a quick rundown of C's and my relationship.


    We met through mutual friends in 2004. We began seeing each other in 2005. C moved into my home located in Balaklava SA in early 2006. We also became engaged Christmas of 2006. We began our family partnership in 2009 after purchasing our first jointly owned property with the intention of running our own cattle/goats/sheep breeding farm. In 2010 C & F Degenhardt joined 2 other entities being C & C Tippet and H & K Tippet to form CCH Contracting, a professional goat mustering contract business. In 2012, our daughter Tess was born. We bought our second property in 2014 within proximity to our first and continued to run and expand our business.


    C and I ran the business as equal partners plus we both had other employment. C working with CCH Contracting, often working away on remote outback stations for weeks at a time. When C was home, we would manage the farms together. During these periods of working away, I would take full responsibility of managing both the farms, as well as my job as an education department school bus driver for Balaklava Primary School where I was employed for 16 years. I also took care of all the paperwork and prepared our taxes. I also took care of most home duties.


    C and I had what I considered to be a great relationship together, he was my best friend. I believe everyone we knew also considered us to have a great relationship. We were happy and our future looked bright.


    In 2017, C developed a severe addiction to ice (methamphetamines). C became increasing paranoid as his use of the drug increased. It started with little things like saying his phone was bugged and asking me to whisper when we were home alone in case people were listening.

    From then on, he continued to get worse as his mental state deteriorated. He went through numerous phones, and began pulling everything apart, he pulled all our vehicles apart looking for tracking devices. Everything electrical was pulled to pieces looking for spy cameras or listening devices. He began accusing friends and family of breaking into his sheds and safes and moving stuff around. He thought drones were following him everywhere sometimes for hundreds of kilometres in the outback.

    The drug prevented him from sleeping and so sleep-deprived and paranoid, C was becoming dangerous. He began carrying his guns around with him, taking it in the car when travelling. His driving was becoming erratic and not only dangerous to himself but his passengers and other road users. I was scared for his health and his safety.

    I did everything I could to try to get C to stop using ice, I thought if I could get him to stop for a week or even a few days reality might set in and with a clearer mind he would be able to see the damage it was doing to him and our family but that drug had taken total control of him. In June 2017, C withdrew two amounts equalling $90,000 from our joint business account as well as demand that I withdraw the $36,000 that I was ahead in my personal home loan.


    By late August 2017, I couldn’t cope with the stress and concern for the safety of my family and dealing with all of C's constant accusations. I felt I had no choice but to ask C to stay out at one of our farm properties and think about what’s most important to him, ice or his family. I asked him to get clean so he could come back home.


    While C stayed out at our farm, we continued to run the business together. I would take our daughter out to see him and spend time with him. I would also allow her to visit with him if someone else was also there. Neither of us had taken steps to take our living separately arrangement permanent and I was always under the intention that C would get better and come home to us.


    On or about 19th December 2017, C took his own life on our property.


    C was found by his brother S and a friend. He was found in his car in one of our paddocks. I am unaware of what processes went on next as I haven’t been informed properly. The unofficial information I have is that S first rang his wife to ask what he should do as she happens to work at the Clare funeral parlour. She told him to call the police.

    A CIB Officer from Kadina came out to do whatever it is they do. I don’t know what was said to the officer in the statement from S, but I’m assuming there is nothing about me or nothing good about me in it. I’m also assuming S forgot to mention to the officer that I had been C’s fiancé and business partner for the last 12 years and held joint ownership of the property with C, or that we have a child together.


    I’m also assuming the CIB officer D didn’t do any checking on the information that was given to him because somehow S was given the keys to the property, which included the keys to open the shipping containers which we have three of out there which contained safes, property belonging to C, myself and our business. I have been told he took quite a bit of our property that day including


    · jewellery


    · tools


    · computers, phones, cameras, memory cards and storage banks.


    · C's wallet


    · Paperwork belonging to C, myself and the business including bank statements and other private information.


    · Equipment belonging to the business.


    · Keys to my properties, containers, safes and vehicles.


    This is just what I’m aware of.


    C was found with the role of money on him and a note that was addressed to our daughter T. These items were taken by the CIB Officer in Kadina.


    I was notified of C’s death via a phone call from Kadina police station checking on my safety as I had made several reports to the police regarding my concerns for C’s mental health. They said they were checking on my safety as sometimes people who take their own lives sometimes take others with them. So, I guess they were checking that I was still alive! I was out finishing my Christmas shopping; C’s eldest daughter didn’t live too far from where I was, so I went straight to her house as we were very close at the time. She came back to Balaklava to stay with me as I didn’t want her and her daughter being on there own during this time.


    It was mid-afternoon by the time we got out to the farm. Three of C’s brothers were there S, D and J. Shane’s wife Ta was there as she had come to collect C’s body and another worker from the funeral house.


    I was worried at the time as to how the family were going to treat me and sure enough, I could tell immediately that I was no longer considered family. S had all the containers open and was going through them, He said he had organised for a truck to pick them up and take them to his house. I told him I didn’t want anything leaving the property at this stage and tried to console him knowing he could be in shock from finding his brother and tried to reassure him that we were both on the same side. A level-headed friend arrived and talked S into leaving the containers, but S insisted that on top of the locks which he had the keys for that he would also weld the container doors shut.


    I still had a business to run and 70+ head of cattle to take care of and feed. They had to let me take C’s ute so I could buy hay for the cattle.


    I decided not to press the issue at the time and let everyone deal with their grief including myself who somehow had to tell my 5-year-old daughter that her father who she idolised, was dead. Christmas was in a few days and we now also had a funeral to arrange. I was hoping that once we got through the funeral and T’s birthday which is in early January that S would have settled down and come to his senses and return my property, but this didn’t happen. I should probably mention that during the 12 years C and I were together I never had any issues with any of his family we got on very well and did many family trips together, yet the day he died they made me the enemy.

    Arranging the funeral

    I was invited to C’s mum house to help with the arrangements for the funeral. Once again, I was reminded, we were no longer part of the family as our greeting was cold and uninviting. We went through who would be doing what and ran through the process of what would be happening. We then had some paperwork to sort out.

    Someone had to sign the form to say they would cover the cost of the funeral if C didn’t have enough in the bank to cover it. Which I didn’t hesitate to do. They put my name down and needed to put what my relationship to C I am, and they wrote Partner. One of C’s brothers R also put his name down and we signed the form.

    I felt relieved that they had acknowledged me as C’s partner but when the death certificate came in, next to Domestic Spouse they had written no. C’s brother’s wife Ta worked at the funeral parlour and from what I've been told had arrangements to do with the death certificate, which I thought could be considered a conflict of interest considering the close relationship.



    The lawyers

    I decided I was going to need a good lawyer, so I researched the web and read reviews and picked what I thought was a top-quality estate law firm. I made my appointment and went in with as much information as possible that I thought they might need. I held nothing back and explained the whole situation as I have above.

    Our first initial meeting ended with the conclusion that we would apply for the declaration to be named domestic spouse and then apply for the letter of administration, they gave me the impression that things were going to be ok and that if we were to hit a few obstacles along the way, they shouldn’t be too hard to overcome. The verbal quote I was given was between $6,000 and $8,000 to settle the estate. I agreed and she said she would look more closely at my information and come up with a formal price estimate for our next meeting.

    I arrived with false hope at our next meeting where she said she had looked more closely at our business and that although C and I were joint owners of the farm properties and normally the ownership would go directly to me. The farms were partnership assets owned by the business which meant they fell under the partnership act. C owned 50% and I owned 50%. Partnership assets included the farm properties, our vehicles, the livestock approximately 80 head of cattle at the time of C’s death, our new Kubota tractor, our truck, the motorbikes, the cattle yards, C’s rifles, the trailers, the caravan and cash in the bank. Now I wasn’t sure if this was a good thing or a bad thing.

    She asked me if we had a written agreement. I said I wasn’t sure, and she said to go and ask my accountant if we had a written agreement for the partnership. She said if we don’t it will all fall under the partnership act and if I’m not declared domestic spouse then C’s children would all own equal shares of C’s 50% and I would need to pay them out. She didn’t seem as confident about the declaration anymore either.

    She seemed concerned about one or more of the family contesting, which would eat up the funds of the estate ultimately resulting in everything for the lawyers and nothing for the estate. She asked me to write a detailed affidavit explaining C and my relationship together prior to his drug use and how things began to change and the events that happened in the 12 months prior to his death.

    I spoke to N our accountant and he said we didn’t have a written agreement and that we were bound by the partnership act. I was shocked N had worked closely with C and I right throughout our partnership, he had even signed us up when we first began back in 2009.

    I sat down and said, "But N, C and I came to you before signing up and we specifically asked you what would happen to the business if one of us died and you told us it would all go to the other partner. C even repeated the question a number of times and each time you assured him the surviving partner would take full ownership."

    N just looked at me and said cause that’s what would normally happen. I went home to email my lawyer and let her know we were bound by the partnership act.

    I didn’t know what I was going to do, and I was getting no support or advice about what might be available to me or my children for emotional or financial support. C and I did have quite a few assets, but we also had a lot of debt. I now had four mortgages to pay, a tractor loan to pay, three properties to maintain and pay bills for, 80 + cattle to feed and care for.

    While still driving the school bus every day, which was our only income coming in. I knew I was in trouble. All our funds were locked away in the bank. The police wouldn’t release the money found on him without the letter of administration. And little did I know I was about to experience one of the worst droughts in years. The price of hay doubled, and things just kept going from bad to worse. Not to mention the huge amount of funds C blew prior to his death. I began to do a lot of my own research.

    My concerns with the lawyer are when it came to the business agreement she was insistent on getting a written agreement. N (our accountant) said we had no formal written agreement. Even his wording suggests there was some form of agreement. I told A that C and I had an agreement, that we had spoken about it and that our intentions were that if one of us were to die, the other receives everything.

    I told her if something had happened to me and C found out he had to split everything with my kids he would have gone off his head. I told her we spoke to Neil about it. I specifically asked her in her office “Does the agreement have to be written?”

    A told me “Yes it has to be a written agreement”. It was only through my own research almost a year later that I found out verbal agreements are legally binding. I went straight in to see N and asked if he would sign a statement verifying our agreement which he did. This, of course, changed everything. Also, believe there must have been something they could have done to help me get funds to help me feed my cows.

    I was literally trimming ute loads from where ever I could to keep up the feed to them over the drought. They were too poor to sell, the prices were down and they were ready to calve again and that meant more mouths to feed. I was in major hardship, with the banks, with my business and with my home. I was scared I was going to lose everything. So while I’m scrapping s**t off the side of the road, with my 6-year-old daughter asleep in the ute till all hours of the night and morning, just so I could keep my cows alive, there is a pile of money sitting in the bank, and a pile of money sitting at the police station.

    I'm telling you I worked my bloody ass off for that farm and our cows and I've had to sell it all. It's probably best I attach all correspondence between the lawyers and myself now. So you can see where we are at and save repeating myself. I also believe the police were negligent but Ill get to that later. I know there is a lot of information but I thought I either give it all to you or you may as well have none.

    Thank you in advance for your time and patience.
     
    #1 Fiona Howith, 23 September 2019
    Last edited by a moderator: 23 September 2019
  2. Perp

    Perp Well-Known Member

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    You need a lawyer who's actively working your file. First priority is having yourself recognised as the de facto spouse.
     
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