Can my new partner challenge the terms of my will?

Starting a new relationship is an exciting chapter in your life, however, when entering a new relationship you should always turn your mind to how this relationship could impact your Will if you die.

What defines a de facto relationship?

Contrary to popular belief, you can still be in a “de facto relationship” even if you have only been in the relationship for less than two years. You could also be in one, even if you don’t live together, or if your relationship is not a sexual one. Like everything with the law, it depends on the facts.

What are the rules in NSW and the ACT

Each state has its own set of rules that define who is an “eligible person” that can make a claim against a Will. In NSW and the ACT, to be eligible, the de facto partner (described as a “domestic partner” in the ACT) may have to prove they satisfy the requirements to be legally recognised as having been in a de facto relationship.

In the ACT, in determining whether two people are in a domestic partnership, the following factors may be taken into account (NSW has a similar list of factors):

  • the length of their relationship;
  • whether they are living together;
  • if they are living together—how long and under what circumstances they have lived together;
  • whether there is a sexual relationship between them;
  • their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;
  • the ownership, use and acquisition of their property, including any property that they own individually;
  • their degree of mutual commitment to a shared life;
  • whether they mutually care for and support children;
  • the performance of household duties; and
  • the reputation, and public aspects, of the relationship between them.

However, most importantly, it is not necessary to establish all of those factors. For example, in a Wills and estates context, you could be considered to be in a de facto relationship/domestic partnership with someone, after only six months of dating that person, especially if they live with you, or if you have joint bank accounts or property, or they are fully or partially financially dependant on you. A de facto relationship can also exist even if one of the persons was legally married to someone else.

In NSW, former de facto partners can also make a claim against your Will in limited circumstances.

Does this mean my de facto is entitled to all or more of my estate?

Just because your partner can prove that they have eligibility to make a claim, doesn’t mean that they will necessarily be successful in obtaining further provision from your Will. We recommend that you seek legal advice to review your circumstances and provide tailored advice.

What about superannuation?

One of the most overlooked aspects of estate planning is superannuation, as it does not always automatically get distributed in accordance with your Will. If your superannuation fund allows it, you should consider signing a Binding Death Benefit Nomination (BDBN) to ensure that your superannuation is paid to a nominated beneficiary (remember you can only nominate a spouse, child, person in an interdependent relationship with you or your legal personal representative). If you have not signed a BDBN and you are in a de facto relationship, this person could end up with all of your superannuation and the attached life insurance.

There was a case which we assisted in, where a young female had a Will and left everything to her siblings and parents. She had been in a relationship for six months and her boyfriend had just moved into her rental home and they were paying for utilities jointly. After her unexpected death, he claimed her superannuation on the basis that he was in a de facto relationship with her and was successful on this basis. This highlights that you don’t have to have been in a relationship for a long time to be considered a de facto.

Marriage can revoke a will!

Remember that if you do marry that part or all of your Will can be automatically revoked. You should update your Will as soon as you get married or make a Will beforehand with a clause that makes it clear that your Will has been made in contemplation of that marriage.

What should you do?

If you have entered a new relationship, or are in a de facto relationship, or have just been married you should update your Will! Contact us now here.

Wills and Estate Planning
tanya.herbertson@mvlawyers.com.au
(02) 6279 4444