This situation is rarely discussed, but it is not uncommon. A wealthy man spends part of each year in Melbourne with a partner his family in Asia either does not know about or chooses not to mention. There may be children. When he dies, the second household appears, sometimes at the funeral, sometimes in a lawyer’s letter.
The question for the estate is not moral. It is legal: what rights does the other family have?
What Australian law recognises
- Children are children. A child born outside marriage has the same standing as any other child, both under the intestacy rules and as an applicant for family provision. If paternity is disputed, the court can order parentage testing.
- A partner can be a “domestic partner”. In Victoria, a person living with the deceased as a couple on a genuine domestic basis can be an eligible applicant, even if never married to him. Australian courts have accepted that someone can be in such a relationship while still married to someone else. Whether a particular relationship qualifies depends on the facts: shared residence, finances, public presentation and duration.
- Dependants. Someone who was wholly or partly dependent on the deceased may also have a claim in some circumstances, for example as a member of the household.
- Assets bought for them. An apartment in the partner’s name, or money transferred over years, may be gifts. Or the estate may argue they were held on trust. Either way, the paper trail matters.
What the family usually wants
Above all, privacy. Estate litigation in the Supreme Court is public, and judgments name families. Most of these matters can be resolved without a hearing through an early, discreet negotiation or a mediation, with an outcome the first family can live with and the second family can accept.
For the person planning now
If you have responsibilities to more than one household, the law will notice them whether or not your will does. Providing for them deliberately, perhaps through a separate trust or a lifetime arrangement, is almost always cheaper and quieter than leaving it to be fought over. A lawyer outside your usual circle may be the right person to speak to. Confidentiality is part of what you are paying for.
Frequently asked questions
Can a child born outside marriage claim from their father’s estate in Victoria?
Yes. A child born outside marriage has the same standing as any other child, both under the intestacy rules and as an applicant for family provision. If paternity is disputed, the court can order parentage testing. Whether a claim succeeds still depends on the will, the estate and the child’s own circumstances.
Can a partner who never married the deceased make a claim on the estate?
Possibly. In Victoria, a person who lived with the deceased as a couple on a genuine domestic basis can be an eligible applicant as a domestic partner, even without marriage, and courts have accepted that such a relationship can exist alongside a marriage. It depends on facts such as shared residence, finances, public presentation and duration.
Can a claim by a second family be kept out of court?
Often, yes. Estate litigation in the Supreme Court is public and judgments name families, so most of these matters are resolved without a hearing through early, discreet negotiation or mediation. The aim is an outcome the first family can live with and the second family can accept.
How should I plan if I have responsibilities to more than one household?
Provide for each household deliberately, for example through a separate trust or a lifetime arrangement, rather than leaving the question to be fought over after your death. The law will recognise those responsibilities whether or not your will does, and a planned arrangement is usually cheaper and more private than a dispute.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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