Defacto Wills and Deceased Estates
The commencement or ending of a de facto relationship will not have an effect on the validity of an existing will. Only marriage and divorce has can automatically impact the validity of a will.
If there is no valid will or no surviving beneficiary nominated in a will, in some circumstances a de facto partner can be deemed to be a “spouse” for the purposes of estate administration. This can result in the de facto receiving a significant portion of the estate. In New South Wales and Victoria a de facto partner who is in a genuine domestic relationship with the deceased at the time of death will be considered a spouse if:-
- They have been in a continuous relationship for at least 2 years preceding the death; or
- There is a child born out of the de facto relationship; or
- The relationship is a registered de facto relationship.
Regardless of the specific terms of the will, it is possible that a de facto partner can make a claim against the estate under the “family provision” legislation applying in the state holding jurisdiction over the Estate.
If your former partner is mentioned in a will, as an appointment or distribution is not automatically invalidated following separation. It is therefore advisable to contact LAC Lawyers to make a new will to reflect your new circumstances.
Defacto Wills and Deceased Estates Articles
Family Law - Contesting Wills - Family Law Provision Claims - Case Note - Successful judgment of claimant of deceased lover and son
Date: January 16, 2012
Author(s): Patrick Mulligan B.A., LL.B.
Case note: Whitehead v State Trustees Limited [2011] VSC 424 (2 September 2011)