De facto Relationships and Will Contests

All jurisdictions in Australia provide statutory rights for eligible persons to contest an unfair Will if they can show that they have been left without adequate provision by the testator.

In Western Australia, an eligible person includes a spouse or de facto partner.

If a family provision claim is successful, the Court can order an adjustment to the terms of the Will to satisfy the claim. 

When contesting a Will, a de facto partner must first establish the existence of the de facto relationship with the deceased immediately before the death of the deceased person and, then show that he or she has been left without adequate provision. Claims are assessed based on a range of factors and the unique circumstances relevant to each case.

It is generally expected that testators have a moral duty to provide for the proper maintenance and support of their spouse or de facto partner. A de facto relationship exists where a couple of the same or opposite sex and who are not legally married or related by family, live together in a marriage-like relationship. 

Factors considered in establishing a ‘marriage-like relationship’ include the length of the relationship, the care and support of children, the nature and extent of a common residence, the existence of a sexual relationship, financial interdependence, property acquisition and ownership, and the public perception of the relationship.

A de facto partner may make a family provision claim if the proposed distribution under a Will or intestate estate does not make adequate provision. Strict time limits apply for bringing such claims and it is wise to obtain early legal advice. 

Most family provision claims can be settled between the legal representatives of the applicant and estate which will avoid costly Court proceedings.

To reduce the possibility of a family provision claim it is important to obtain good legal advice when preparing your Will and to ensure that your Will is regularly reviewed.

 

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.