The Australian healthcare system is one of the best globally, with hospitals capable of treating even the

The death of a family member or loved one may be a very distressing time, especially if you believe you have been overlooked in a Will or have been under-accounted for. In this case, you might want to consider contesting a Will. To challenge a Will, you must first assess whether you are entitled to do so and whether you have legal grounds to do so. 

Since the legal position of de facto partners is ambiguous in various jurisdictions, it can get confusing to ascertain the stand of a de-facto partner in a will estate dispute. Here’s what you need to know.

What is a de-facto relationship?

The definition of a de facto spouse is contained in the Property (Relationships) Act 1984 and is as follows:

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

Unmarried spouses in a de facto relationship are normally treated the same as married spouses under Australian law. When one spouse passes away without leaving a Will, the other is considered to inherit. When a child or other claimant contests a distribution to an unmarried partner, the issue typically revolves around whether or not there was a de facto relationship.

What does the Court consider when someone challenges a Will?

The Property (Relationships) Act 1984 states that in determining whether the two persons are in a de facto relationship all of the circumstances of the relationship are taken into account, including the following, if relevant:

  • the duration of the relationship
  • the nature and extent of common residence
  • whether or not a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship

The only concern is whether the two adult individuals are living together as a couple, assuming they are not related. It should be noted that “living together as a couple” does not always imply “living together in the same house,” and the kind and extent of a shared estate is only one aspect. 

To successfully dispute a Will, the de facto spouse must show that the provision made for the de facto spouse in the Will (or in the absence of a Will, under the norms of intestacy) was insufficient. Your estate litigation lawyers can help you build a strong case regarding this. 

If the Court agrees, the next step is to figure out how much, if any, should be awarded to the de facto spouse from the deceased person’s inheritance, in addition to the amount the de facto spouse might be entitled to under the terms of the will. 

Even if you have amended your Will and have a property settlement, you should be aware of ex de-facto partners claiming financial support from your inheritance, depending on the State or Territory in which you live. 

In general, if your former de facto was being supported by you at the time of your death in NSW, Tasmania, Western Australia, or the Northern Territory, he or she might bring a claim on your inheritance. If your ex-partner is also the parent of your minor kid, Queensland has similar laws. The right to bring such a claim in Victoria is contingent on you and your ex-de facto not having finalised a property settlement by the time you die. 

To completely prevent your de facto partner from bringing a claim for Will dispute after you die – you both can sign into a joint deed of release, in which you undertake not to file such a claim against the other’s estate.

When to seek legal help?

There are a number of nuances in this area of law, and it is important that you get counsel from the specialised deceased estate lawyers in the contested Will dispute division, who often appear before the Court in these sorts of cases. 

While each case is unique, a de facto spouse can have a solid moral claim to the deceased person’s assets provided the claim is well-prepared and handled by attorneys with competence in the field. 

If you are going through a breakup, regardless of where you reside in Australia, talk to your Will and estate lawyers about what will happen if you or your former spouse dies, even after you have completed your property settlement. If you need any assistance, get in touch with the team at AJB Stevens today to discuss your situation. We’ll help determine the best course of action for you, moving ahead.