Can your ex-defacto inherit under your will?

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 your partner (in the event of what you thought of as the far away 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.  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 dies.

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.

So, can your ex-de facto inherit?

Effective from 5 June 2017, amendments were made to the Succession Act bringing de facto relationships into alignment with married relationships.

The end of a de facto relationship now has the same effect on your will as a divorce.

This means that at the end of the de facto relationship, a gift left to a former de facto spouse under a will is automatically revoked, along with his or her appointment as executor of the will (unless a specific contrary intention appears in the will).

Is this different to the end of a marriage?

As many people are aware, divorce of a married couple already revokes the appointment of a former husband or wife as executor of the Will, and revokes any benefits left to them by the Will.

However less well known is that their separation, (as opposed to formal legal divorce by decree of the Family Court) does not revoke the bequests in wills made during their marriage.

All too often we encounter situations in which (despite having been embroiled in lengthy and acrimonious Family Court proceedings with a former spouse for property settlement and custody of children) a client seeking our advice, often on an entirely unrelated matter, has not changed their will, so that if they were to die their former spouse (from whom they have not been formally divorced – even if they have finalised a property settlement) will still receive all or a substantial part of their estate if they die - although this would be the last thing that they would want!

This may appear anomalous, but now merely ending a defacto relationship has the effect of revoking the benefits left by will to the former defacto partner, but on the other hand the end of cohabitation with a married partner will not have that effect – as a formal divorce is required!

We recommend to clients that they consider the terms of their wills and enduring powers of attorney (‘EPA’s’) every 3 to 5 years, or if there has been a significant change in their circumstances.

We regularly marvel at the very low proportion of Australians who have current up to date wills and EPA’s, despite the costs and stress to their loved ones when they die or suffer impaired capacity and it turns out that they don’t have will, or their wills do not express what they wanted (or what their family believe they wanted).

We have considerable expertise and long experience in dealing with these issues and their consequences.

Everyone realises having an up to date will and EPA is important, but it is rarely treated as urgent - until it is extremely urgent!

If you have any queries or someone you know wants more information or needs help or advice, please contact us on 5443 4866 or email kwaddington@gwlaw.com.au.

 

Ken Waddington

Partner

(07) 5443 4866

kwaddington@gwlaw.com.au

 

 

Nicole Downs

Solicitor

(07) 5443 4866

ndowns@gwlaw.com.au 

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