Background
David Rimmer died intestate in 2016, survived by his de facto partner, Carolyn Wilton, and his two adult children, Nigel and Nicola Rimmer. Mr Rimmer and Ms Wilton owned the Moumoukai Road property as tenants in common in equal shares and had entered a 2002 contracting-out agreement under s 21 of the Property (Relationships) Act 1976.
The agreement gave the survivor a lifetime right to occupy and use all relationship property, stated that it was a full and final settlement of claims between the parties, and bound their personal representatives. Ms Wilton elected option B under the Act and claimed both her contractual rights and the intestacy entitlements available to a surviving de facto partner under s 77 of the Administration Act 1969. The High Court and Court of Appeal accepted that position.
The Court’s Holding
The Supreme Court allowed the children’s appeal. Properly construed, the agreement limited Ms Wilton’s entitlement to Mr Rimmer’s share of the Moumoukai Road property to the life interest created by clause 4.4; she was not entitled to an additional beneficial share of that property under the intestacy provisions.
The Court held that parties may contract out of intestacy entitlements through an agreement authorised by ss 21–21B of the Property (Relationships) Act. Clause 5.1 was a comprehensive contractual promise not to claim against the other party’s property and was effective either as a pre-existing disclaimer or as a promise to disclaim under s 81 of the Administration Act. An election of option B did not displace an agreement that regulated the parties’ property entitlements on death.
Key Takeaways
- A valid relationship-property agreement can restrict a surviving partner’s entitlement on the other partner’s intestacy.
- Option B under s 61 of the Property (Relationships) Act does not prevent reliance on a contracting-out agreement.
- The Court did not decide whether clause 4.2 altered Ms Wilton’s underlying share, whether her life interest survived the property’s sale, or whether she was properly appointed administrator.
Why It Matters
The decision confirms that s 21 agreements may do more than classify property or regulate separation: depending on their wording, they can determine what a survivor may receive on death and require the survivor to forgo otherwise available intestacy benefits. Lawyers drafting relationship-property agreements should therefore address death, testamentary gifts, and intestacy rights expressly.
The Court set aside the Court of Appeal’s costs order and awarded the appellants costs there and in the Supreme Court. High Court costs were left where they fell.