Legal Hypothetical – Home-made will and same-sex de facto claim


Home-made will and same-sex de facto claim.

SCOTT makes a home-made will, leaving his $3 million estate to his closest blood relatives, being his two nieces.

The will is not witnessed.

When Scott passes away shortly thereafter, Harry makes a claim against Scott state, alleging that he had a secret same-sex relationship with Scott for 10 years and that the home-made will is not valid.

Scott’s estate makes a cross-claim against Harry, alleging that he transferred funds from Scott’s bank accounts to himself, shortly before Scott’s passing.

In support of Harry’s claim that there was a de facto relationship between himself and Scott, he gives evidence that they normally had dinner together after work and that they had a sexual relationship.

Harry also says that Scott gave him $150,000 to purchase a business, which they had intended to run together.

He says that Scott never wanted the money to be repaid.

In defense of Harry’s claim, it is argued that the transfer of funds constituted loans that were to be repaid to Scott’s estate and evidence is put before the Court, that during Scott’s lifetime, he had strong heterosexual relationships and never displayed any homosexual interests.

The Court states that if Harry were eligible to make a claim, he needed to establish that he and Scott were “living together” at the date of death.

The Court rules that although the concept of “living together” did not necessarily require a permanent or exclusive common residence, that Harry had failed this test and accordingly, was not eligible to make a claim and did not have standing to dispute the validity of the will.

The Court also rules that the $150,000 was fraudulently misappropriated and ordered Harry to repay the funds.

If YOU would like a particular issue addressed, please email Manny at [email protected] or call him on (02) 6648 7487.


By Manny WOOD, Solicitor

Leave a Reply