Once upon a time, you were happily living together with your de facto partner. Roses were bought, dinners were cooked, finances were shared, and Wills were signed leaving all your assets to the other partner in the event of what you then thought of as the faraway time of your tragic passing. Thoughts of either of you dying were such a melancholy distraction from the happiness of your lives together, that you put your Wills away in a bottom drawer and never looked at them again.
Unfortunately, however, there wasn’t a fairytale happily ever after ending to this story. You and your partner decided to take your lives in different directions. Joint bank accounts were closed, furniture and other assets were divided; but all the while, your Wills stayed in the bottom drawer, unread and forgotten. Until one of you died.
What happens now?
Your ex de facto wants his or her share; your other family members think “They were never married. Why should she/he be entitled to anything?” It looks like this might get messy.
Are your other family members right?
Many people think that, because they weren’t married, their ex de facto has no future financial claim on them or their estate. Some people might also think that if they and their ex-partner have divided up their assets, neither one could have a further financial claim on the other. Those assumptions, however, aren’t always correct.
The laws relating to the division of assets after a couple separates are distinct from those dealing with Wills and inheritances. A Will is not affected by a family law property settlement, which, in itself, cannot prevent someone from receiving a gift left to them in their ex-partner’s Will.
So, can your ex-de facto inherit?
In the Western Australian case of Blyth v Wilken, the Court considered a situation where, in his Will, the deceased left his assets to his (now) ex de facto partner; the parties having separated some three years before the deceased’s death. Eleven years before his death, and at a time when the couple were living together, the deceased made a Will leaving the bulk of his estate to “my de facto wife Kathrine”. The Will had not been changed after the parties separated.
The Court found that by using the words “my de facto wife Kathrine”, the deceased didn’t merely intend to benefit Kathrine; he intended to benefit Kathrine because she was his de facto wife. Accordingly, the Court found that, notwithstanding what the Will said, the deceased would not have wanted Kathrine to benefit from his estate as she was no longer his de facto wife at the time of his death. The gift to Kathrine, therefore, failed, and other family members benefitted from the deceased’s estate.
Would different words have made a difference?
The decision in this case depended on the use of the words “my de facto wife Kathrine” in the deceased’s Will. If the Will had merely referred to Kathrine by name, without also describing her as “my de facto wife”, the outcome may have been different. That is, despite separating from the deceased almost three years before he died, Kathrine could have received the bulk of her former de facto partner’s estate.
A word of caution. The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding on the West Australian Supreme Court, nor other Courts, which could come to a different decision on similar facts. Just because your Will refers to “my de facto partner such and such” that is not necessarily a guarantee that that person will not be able to benefit from your estate in the event that you die after ending your relationship with them.
The Succession Act 2006 (NSW)
In New South Wales, the intricacies of succession law, especially concerning de facto relationships, raise some unique challenges.
The Succession Act 2006 outlines the legal framework governing Wills, the administration of estates, and the rights of individuals to contest Wills.
In New South Wales, the finalisation of a divorce will automatically override provisions in a Will for gifts made to a former spouse and the appointment of a former spouse as an executor, trustee, or guardian (unless contrary intentions are clearly expressed in the Will). Separating from your de facto partner, however, is less straightforward and does not necessarily change your Will, and any gift to your ex de facto may still be valid even if you have separated and divided your assets.
The Succession Act also allows for eligible individuals to make a Family Provision Claim, and in New South Wales, an eligible person may include an ex de facto partner provided certain criteria are met. In addition to meeting the eligibility hurdles, a number of factors would be considered in determining whether such a claim would be successful.
Conclusion
Crafting an effective Will that accurately reflects your intentions requires thoughtful consideration and usually, the guidance of a legal professional. It is essential to explicitly mention all beneficiaries including, or specifically excluding, an ex de facto partner to avoid any ambiguity that could lead to disputes.
Additionally, keeping your Will updated to reflect any significant life changes, such as the end of a de facto relationship, is crucial. This ensures that your testamentary wishes align with your current circumstances and intentions.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].
