(Last Updated On: October 21, 2017)
Somebody dies (Mum/Dad). They have a will. It says: “I give my household contents (or personal items) to my children to be divided equally between them” (or ‘to divide my estate equally between my children'). But there is a problem: Mum/Dad was married for a second time or in a de facto relationship with some else when they died. This person was living with your Mum/Dad for, say, ten years before Mum/Dad died. They say that most of the items in the house were bought whilst your Mum/Dad were living with them. You think that your Mum/Dad bought most of the items because the other person had no money.
Who gets what?
This issue recently cropped up in a court case in Western Australia.Lafferty v WatertonThe particular argument was whether some valuable antiques and furniture belonged to the Deceased person or had belonged to their previously deceased spouse. At paragraph 18 the court said: “Personal property may be owned jointly, with the consequence of survivorship on the death of one joint owner. It is a question of fact for each item whether it was acquired as the individual property of one or the other of the parties to the marriage, or was jointly owned, or even owned in common (with no right of survivorship). With general household items, it might be inferred, in the absence of contrary evidence, that they were owned as joint property. The items in question, however, are antiques and such an assumption might not reflect the facts.” “general household items” probably include cutlery, crockery, sofas, televisions etc. These would be considered to be jointly owned unless there was evidence to the contrary. For example, if somebody bought Mum/Dad the item for their birthday/xmas present. Jewellery would not be considered jointly owned.
A sting in the tail.
A sting lies in the words “It is a question of fact for each item”. This means that, if there is a dispute, the court would have to decide whether each particular item was jointly owned (by Mum/Dad and the new partner) or owned just by Mum/Dad. An expensive process, probably far more expensive than the item itself.