Revoking Letters of Administration: Reordering Succession by Determining a De Facto Spouse in Jasarevic v Nesovanovic (2017)

Background

Letters of Administration grant authority to administer an estate of a deceased person. They are granted where the deceased dies intestate (without a Will) or where there is no executor of a Will to apply for Probate. Interested parties, such as beneficiaries, banks and insurance companies, will require someone to be granted Letters of Administration before funds from the deceased’s estate are released.

When someone dies intestate, the New South Wales Succession Act 2006 determines which next-of-kin will be the administrator and how the estate will be distributed among the deceased’s relatives. 

Recently, in an interesting case involving the order of succession and determination of whether a de facto relationship existed, the Supreme Court of Victoria granted Letters of Administration to a de facto spouse ahead of a previous grant to a nephew. New South Wales legislation is very similar to that of Victoria, though preferring the term “de facto spouse” to Victoria’s “domestic partner”. The term domestic partner is not defined but is a matter for the court, taking into account all the circumstances. 

Applying for Letters of Administration can be complex, requiring a thorough search for a Will or other medium (please see our recent blog Are Informal Electronic Wills the Future?) that might set out the deceased’s intentions regarding the distribution of the estate.

Key issues

Who can apply for Letters of Administration in New South Wales?

The most common applications for a grant of administration are made by the surviving spouse or de facto spouse. To be a de facto spouse, entitled to a share in the estate, the relationship must have been registered under the Relationships Register Act 2010, or be a de facto relationship that has either been in existence for a continuous period of at least two years or has resulted in the birth of a child.

After spouses and de facto spouses, the Succession Act sets out an order in which eligible relatives can inherit an estate. Generally speaking, only someone who is entitled to all or a share in an estate can apply for Letters of Administration.

How can Letters of Administration be revoked?

Letters of Administration grant authority to administer the estate of someone who has died without making a Will. The Court, however, has the power to revoke a grant, at its discretion, having regard to all the circumstances. An applicant for revocation must demonstrate that:

1. they have standing to make such an application;
2. there is a reasonable explanation for the delay in bringing the application;
3. there is a prima facie case to challenge the grant.

How was revocation achieved in Jasarevic v Nesovanovic?

In Jasarevic v Nesovanovic (2017), the judge needed to consider whether Rada Nesovanovic was the “domestic partner” of Nail Hamidovic. Letters of Administration had been granted to Nail’s nephew, Jasmin Jasarevic, who was to be the sole beneficiary under the intestacy laws. However, Rada Nesovanovic applied for revocation of the Letters of Administration in order to become a beneficiary. The onus was on her to prove she was an “unregistered domestic partner”.

Rada and Nail met in 1990. She had moved to Australia from what was then Yugoslavia in 1971. She had been educated to a basic level only and had limited English, not being able to read or write in the language. She was 85 years old at the time of the judgment. These were all factors that contributed to the time taken to make an application. Although the judge found “her evidence on some issues was incomplete and, on some other matters, inconsistent”, nevertheless she was considered a “credible witness”. The judge concluded:

“I consider that Rada is the sole beneficiary of Nail’s estate and has the better right to apply for Letters of Administration of his estate. Accordingly, I consider that there are sufficient grounds for the revocation of the Letters of Administration granted to Jasmin and that Letters of Administration should be granted to Rada, who has the greatest interest in Nail’s estate.”

The key factors in the decision were:

1. the length of the relationship;
2. the public conduct of the relationship;
3. mutual attendance at the other’s medical appointments;
4. shared activities both leisure and sexual; and
5. although there were separate living arrangements and separate finances these did not displace the evidence pointing to a genuine domestic relationship.

The position in New South Wales is much the same except with regard to living arrangements. In Victoria, living together is just one factor among a number whereas the NSW Interpretation Act 1987 requires persons to “have a relationship as a couple living together” and determination of a de facto relationship includes “the nature and extent of their common residence”.

What does it mean?

The finding in Jasarevic was that “a loving, committed relationship which was observed by third parties to be a genuine domestic relationship” existed. The existing Letters of Administration were revoked and new Letters of Administration issued to Rada re-ordering the succession.

The court has discretion to set aside a grant of Letters of Administration. If the court is satisfied that it should exercise its discretion it can make orders to that effect.

The case once again emphasises the importance of having a valid Will if resort to the courts is to be avoided.

Whether applying for a grant of Letters of Administration, or revocation of a grant, the processes can be complex and expert legal advice is advisable.

Contact our Wills & Estates Lawyers in Surry Hills, Sydney

Szabo and Associates, Solicitors offers a comprehensive service for drafting Wills and Estate Planning. We can advise on all matters relating to applying for a Grant of Probate or Letters of Administration, or revocation of a grant, intestate succession (dying without a Will) or contesting a Will. Please contact us on (02) 9281-5088 or fill in the online form.