How Does the End of a De Facto Relationship Affect a Will?

There have been great advancements in family law to account for the ever frequent ‘de facto relationship’. However, succession laws governing will’s and estates distinguishes the end of a de facto relationship from a divorce.

What is a de facto relationship?

Under section 4AA(1) of the Family Law Act 1975 (Cth), a person is in a de facto relationship with another person if they are not legally married, not related by family, and are in a relationship on a genuine domestic basis. Considerations for a genuine domestic relationship include; relationship duration, nature and extent of their common residence, sexual relations, financial dependence/independence, ownership of property, mutual commitment to a shared life, whether relationship was registered, care and support children, and perception of the relationship from the public.

What Happens if you Fail to Change Your Will After Separating From Your Partner?

Unlike a divorce, separating from a de facto partner does not revoke your ex-partner from entitlements provided by the Will. However, revocation may occur due to the wording of the Will. The intention of the deceased from the drafting of the Will is assessed. For example, a former partner being described in the Will as the testator’s ‘de facto partner’ may show that there is no intention to leave a gift to a former partner. As the relationship ceases, so did the intention to leave benefits or gifts to the ex-partner. It is therefore crucial to carefully draft your Will to reflect your intentions in the case that a relationship dissolves.

Can an Ex-De Facto Partner Make a Family Provisions Claim?

A family provisions claim is an application to the Supreme Court of New South Wales to challenge a person’s share of the deceased’s estate. Under section 57(1)(d) of the Succession Act 2006 (NSW), a former spouse or de facto partner of a deceased person can make a family provision claim against the deceased’s estate regardless of the written intentions in the deceased’s Will. However, a former partner is not normally regarded as being naturally appointed in a Will. To make an application they must demonstrate a social, domestic or moral obligation (beyond mere financial relationship) on the deceased to have provided for them. If an application is successful, the  Court will assess whether further provision for proper maintenance should have been allocated in the Will. This is most common in situations where the former partner is still dependent on the deceased for financial support.

Consenting A Will

How Can You Prevent a Family Provision Claim?

If a couple remain financially dependent on each other after separation, the persons may enter into a mutual deed of release. Each party promises not to bring such a claim against the other’s estate. The deed becomes binding once it is approved and upheld in the Supreme Court of NSW.

The law surrounding the effect of the end of de facto relationships on Will’s is unclear and open for interpretation once the person has deceased. We recommend drafting a Will which precisely details your intentions. The Will should also be regularly update – particularly after substantial life changes. Please contact us to discuss your needs.

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