Normally, on moving into a retirement village, the retired person will enter into a contract with the village operator. However, a spouse or de facto partner may move in with a resident without themselves signing a contract with the operator. If this occurs, the spouse or de facto may still be considered a resident.
Under the Retirement Villages Act 1999 (NSW) (the Act), section 4(1) a “resident” is defined to include the spouse or de facto of the retired person, provided they lived in the retirement village premises with the retired person. The Retirement Villages Regulations 2017 (NSW) (the Regulations) further prescribed that the spouse or de facto is a “resident” if they were living with the retired person in the village immediately before the retired person’s death and they continue to occupy the residence. The spouse or de facto is deemed to have a right to reside in the premises even though they never signed a contract. This is while the retired person is also living in the premises, but also after their death.
However, this will not apply if the retired person makes different provisions in relation to the retirement village premises in their Will.
What does this mean?
It is important to consider the potential ramifications of an unregistered resident when making your Will.
It is also important for executors of deceased estates to be aware of these provisions. In dealing with the assets of the estate, the executor may be confronted with a surviving spouse residing in the retirement village premises and will need to know whether or not they can be evicted.
