When Love Doesn't Come with Legal Certainty: Lessons from Re the Estate of Dunham [2025] VSC 746

Picture this: Your client calls you, distraught. Their partner of 30 years has died without a will, but now they're facing a challenge from their partner's former relationship. Sound familiar?

Research conducted by NSW Trustee and Guardian in 2023 showed that 60% of NSW residents do not have a legal Will document in place. The recent Victorian Supreme Court decision in Re the Estate of Dunham serves as a stark reminder of what can go wrong when modern relationships collide with intestacy laws.

The Case That Changed Everything

Russell Leslie Dunham died in January 2022 without a will. He did not have any children and was not married, having earlier divorced. He left behind an estate worth approximately $450,000. Two women claimed entitlement: Narelle Lindsey, who alleged she was his unregistered domestic partner at death, and Amanda Dean, his former partner of some 30 years who had lived with him until 2021 but believed she retained rights to his estate as his de facto spouse.

Dean filed a caveat challenging Lindsey's application for letters of administration, arguing she had a better right and that Lindsey lacked the required relationship status. However, the court dismissed Dean's caveat entirely, finding she had no legal standing and failed to establish even a prima facie case.

The Court's Decision: A Double Blow

Justice Goulden delivered a decisive judgment on two critical grounds.

First, Dean lacked standing because she admitted living with Dunham only "until 2021" — failing the strict requirement for continuous cohabitation for two years "immediately before" death.

The ending of a de facto relationship may not be obvious and in law, it may not occur when either party believes it has. Intestacy: The ending of a de facto relationship has the effect of disentitling the parties to any rights upon intestacy.

Second, her grounds disclosed no genuine case for investigation, containing contradictory claims about being both a "current" and "former" domestic partner.

The court emphasised that "probate litigation is interest litigation. It is not to be undertaken or interfered in by outside busybodies." Without a beneficial interest under intestacy laws, Dean was precisely that — a concerned party with no legal entitlement.

Key Lessons for Practitioners

1. The Absolute Necessity of Current Wills

An up-to-date will is your best defence against intestacy laws. The consequences of dying intestate in Australia are simple: instead of you deciding who will inherit your property, the courts will decide. Dunham's case perfectly illustrates how competing claims from multiple relationships can devastate estates through litigation costs and emotional trauma.

2. The Strict "Unregistered Domestic Partner" Test

Victorian law demands continuous cohabitation for at least two years "immediately before" death. This isn't just about duration — it's about timing. As Australia's family structures continue to shift, understanding the nuances of de facto relationships (and their endings) is more important than ever for estate planning and administration. A 30-year relationship means nothing legally if it ended before the critical two-year period preceding death.

3. Standing Requires Beneficial Interest, Not Moral Grievance

Practitioners must counsel potential claimants that good intentions or long-standing relationships don't create legal rights. Standing requires demonstrating a direct beneficial interest — typically through intestacy entitlement or a valid will provision. Claims based on being a "whistleblower" about allegedly inappropriate relationships will fail.

4. Prima Facie Cases Need Specific Particulars

Bare assertions won't suffice. Claimants must plead concrete facts supporting each element of their claim. Contradictory statements — like claiming to be both current and former partner — are fatal. If there is disagreement about whether the relationship had truly ended, the Supreme Court of Victoria may review the evidence and decide.

5. Documentation Is Everything

Record key events and intentions, such as moving out, closing joint accounts, or ceasing financial contributions. Even informal written evidence can be helpful in later disputes. Contemporary evidence of relationship status becomes crucial when disputes arise. This is particularly important for de facto relationships, because it is often difficult to determine when that relationship ends.

The Broader Implications

This decision highlights the precarious position of those in successive or overlapping relationships. For those in de facto relationships, don't assume your partner will automatically inherit. In Australia, de facto partners may need to prove their relationship status to claim inheritance rights. A clear will can prevent such complications. The court's approach also demonstrates the high threshold for challenging grants — summary dismissal awaits ill-prepared challenges.

Your Professional Imperative

Every client consultation should include frank discussions about relationship status and documentation. Don't assume clients understand the legal implications of informal separations or the strict timing requirements for de facto recognition. This situation arises more often than many people realise. A will might be invalid because it wasn't executed correctly, or because a later marriage, divorce, or relationship change automatically revoked or altered it.

Consider developing standard questionnaires addressing relationship history, separation dates, and current living arrangements. These details can prevent the kind of devastating litigation we saw in Dunham.

The Bottom Line

Re the Estate of Dunham reminds us that estate planning isn't just about tax efficiency or asset protection — it's about preventing family devastation. In our increasingly complex relationship landscape, a properly drafted will isn't a luxury; it's essential protection against the harsh realities of intestacy laws.

What steps are you taking in your practice to ensure clients understand these risks before it's too late?