The Succession Act 1981 (Qld) (the Act) deals with the making, alteration and interpretation of Wills, the rules of intestacy and family provision claims in Queensland.
Unless a contrary intention is stated, once a person is divorced, the provisions of his or her Will regarding the appointment of the former spouse as executor, trustee or guardian and any gifts left to the former spouse are revoked. Provisions regarding a grant of appointment exercisable by, or in favour of a former spouse, are also revoked.
Reflective of contemporary relationships, the Act was recently amended to address de facto relationships. The inclusion of s 15B means that the end of a de facto relationship will have the same effect as a divorce – provisions regarding the appointment of the ex de facto partner as executor, trustee or guardian and any gifts made to the ex de facto partner, are revoked. This, of course, is subject to any contrary provision in the Will.
The Act describes a former de facto partner as ‘the person who was the de facto partner of the testator immediately before the ending of the testator’s de facto relationship.’
The provisions do not affect the appointment of a former spouse or de facto partner as trustee of property left on trust for beneficiaries that include their mutual children or the grant of a power of appointment exercisable by the former spouse or de facto partner in favour of their children.
Curiously, the revocation provisions do not specifically apply in the Act to those that have separated but are not divorced. Consequently, despite the finalisation of a property settlement, a former spouse where a divorce has not been legally finalised may still benefit substantially if a Will is not changed to reflect the testator’s new circumstances.
What does this mean for me?
If you have made a Will that appoints and / or benefits an ex de facto partner, it is important to update your Will to account for your new circumstances and to ensure that it reflects your wishes when you die.
If you haven’t already done so, we recommend you finalise your financial and property affairs with your ex-partner to protect your assets, avoid future disputes and to allow you both to move on with your lives.
Most property settlements can be affected without the expense of going to Court. This may be through consent orders or a financial agreement. A lawyer can assess your circumstances, explain your rights and advise the most appropriate means of finalising your financial matters.
If you do not have a current Will and your relationship status has changed, we recommend you obtain legal advice to prepare a Will that minimises the potential for future disputes and family provision claims.
Can an ex de facto partner contest your Will?
All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will on the basis that they have not been left adequate provision by the testator. If a family provision claim is successful, the Court can adjust the terms of the Will in the applicant’s favour.
The applicant must be an eligible person and prove that the deceased had a duty or moral obligation to provide for his or her proper maintenance and advancement in life and that the distribution proposed under the Will fails to do that.
In Queensland, a former de facto spouse is not expressly listed in the Act, however s 40 provides that certain ‘dependants’ of the deceased may be eligible persons.
A ‘dependant’ is a person who was being wholly or substantially maintained or supported by the deceased person at the time of his or her death and includes the parent of a surviving child under the age of 18 years who is also a child of the deceased. Consequently, these provisions could effectively bring an ex de facto partner into the category of eligible persons who may claim financial provision from an estate.
Proving a de facto relationship
In the case of a Will contest or family law dispute, it may be necessary to prove whether a de facto relationship existed.
Essentially, a de facto relationship is where a couple, of the same or opposite sex and who are not legally married or related by family, live together in a genuine domestic relationship. Factors considered in establishing a ‘genuine domestic relationship’ include the duration of the relationship, whether the partners have a child together, the nature and extent of common residence, the existence of a sexual relationship, financial interdependence and property acquisition and ownership.
The existence or otherwise of a de facto relationship is sometimes difficult to determine but may have significant impact on your legal rights. It is therefore important to keep accurate records regarding matters such as dates of cohabitation, joint and individual property acquired and how income is used between you and your de facto partner.
Regardless of your relationship status, a current Will reflecting your circumstances and testamentary wishes is essential when planning your estate.
If your relationship has recently broken down, it is important to obtain sound legal advice to finalise the distribution of your property and to update your Will. Your lawyer will explain the circumstances under which a family provision claim might be made and recommend strategies to minimise potential disputes down the track.
If you or someone you know wants more information or needs help or advice, please contact us on 07 4927 9477 or email email@example.com.