mother and daughter's partner at war

Mother & Daughter’s Partners at War

By Pamela Tieu 11/08/2017

People are generally looking for love in their life but at times relationships can become complicated. Most people at some point in their lives may have been involved in a “complicated relationship” for example where it is difficult to describe their marital status. Love and relationships may sound like child’s play but it becomes an important question in the eyes of the law and no more so than when dealing with the question of intestacy, that is an estate which arises when a person dies without an effective will which directing how they wish the property they have left behind, otherwise known as their estate, to be disposed of.

In the case of Spencer v Burton [2015] QCA 104, Sharon Burton and Kent Spencer had a rather complicated love story. Sharon and Kent were in a romantic relationship for 13 years, however, those 13 years were not perfect. Kent had an affair in 2009 which resulted in an end to their relationship but they later reconciled and their romance continued until tragedy struck. In November 2010 Sharon was diagnosed with cancer and passed away in July 2012. They were never married and had no children during the course of their relationship. After her death, Sharon left behind more than $800,000.00 worth of assets but she had no will. This meant she died intestate and that led to serious complications.

Initially, Kent obtained Letters of Administration on Intestacy on the basis that he was Sharon’s de facto spouse. This means that he became Sharon’s personal representative and also the sole beneficiary in her estate.

However, Ms. Daphne Burton (Sharon’s mother) later brought an application in the Supreme Court seeking a declaration that Spencer was not a spouse or de facto partner of her daughter and therefore seeking an order that the Letters of Administration on Intestacy granted to him should be revoked and granted to her. She succeeded in her action. Kent and Sharon’s mother never got along with each other and this may well have been the reason for her application.

As Kent and Sharon were never married in order for Kent to have priority over Daphne to receive Sharon’s estate it was necessary for him to prove to the Court that he was indeed Sharon’s de facto spouse.

The court takes account of several factors in determining whether a person is a de facto partner and this is where complications can arise. It can be very difficult in weighing up and balancing the competing factors which include;

  • Nature and extent of their common residence;
  • Length of their relationship;
  • Whether a sexual relationship existed;
  • Degree of financial dependence or interdependence, and any arrangements for financial support;
  • Ownership, use, and acquisition of property;
  • Degree of mutual commitment to a shared life including care and support of each other;
  • Performance of household tasks;
  • Reputation and public aspects of their relationship.

The Trial Judge found in favour of Daphne saying that he was not satisfied that a de facto relationship existed between Kent and Sharon mainly because Kent and Sharon did not pool their financial resources and liabilities.

Kent then appealed the decision to the Queensland Court of Appeal on the basis that the primary judge placed too great of weight on evidence related to financial and property matters and insufficient weight on other evidence. Kent argued that although he and Sharon had little financial dependence on one another because Kent did not provide sufficient or any financial contribution to the mortgage on the apartment they were in fact living together.

Her Honour Justice Ann Lyons stated that each factor referred to above should be given equal weight. Her Honour disagreed with the primary judge and considered that he may have placed too heavily on the financial factor of their relationship and made no reference to other relevant evidence relating to the other factors set out above.

One piece of significant evidence the primary judge did not refer to were the medical records signed by the deceased. In the year 2011, there were two occasions where Sharon upon filing her medical details in the hospital, she referred to Kent as her “De facto” and on one occasion as “Partner”.

Her Honour considered that the deceased had formulated a view that at the time these comments were made the status of her relationship with Kent was that they were a de facto couple. Furthermore, Her Honour took into account Kent’s care and support for Sharon towards the end of her life. The primary judge failed to consider adequately this factor despite evidence indicating Kent’s constant and genuine care towards Sharon during the time of her illness.

Her Honour Justice Ann Lyons made an order allowing the appeal allowed and made a declaration that the judgment of the primary judge set aside.

The matter is now to be remitted to the trial division for determination by a different judge.

The outcome of this case shows that the relevant factors in determining whether a de facto relationship exists is complicated and each situation must be considered on a case by case basis. There is no ‘one size fits all’ solution.

All this came about primarily because there was no effective Will.

Sharon’s estate is yet to be finalized and this has caused a bitter legal battle after her death between two people whom she most loved and who were closest to her.

The moral to this story is that to avoid complications of this nature and to provide for the distribution of your estate in the manner in which you want it to happen, it is wise to consult your legal practitioner to discuss and put into effect proper estate and succession planning.


This material is produced by T Lawyers. It is intended to provide general information in summary form on legal issues, current at the time of publication. This material has been prepared without taking into account your objectives, situation or needs. The contents do not constitute legal advice and should not be relied upon as such. Proper legal advice should be sought in particular matters. T LAWYERS PTY LTD disclaim all and any guarantees, undertakings and warranties, expressed or implied, and shall not be liable for any loss or damage whatsoever arising out of or in connection with any use or reliance on the information or advice on this material

Pamela is the Practice Director of T Lawyers Pty Ltd. Pamela graduated with a Bachelor of Laws and a Bachelor of Business from Queensland University of Technology.