Once upon a time you were living together happily with your de facto partner. Roses were bought, dinners were cooked, finances were shared and Wills were signed leaving all your assets to your partner in the event of your tragic passing in years to come. Thoughts of your or your partner dying were such a melancholy distraction from the happiness of your lives together, that you put your Wills away in a bottom drawer and never looked at them again.

Unfortunately, however, there wasn’t a fairytale happily ever after ending to this story. You and your partner decided to take your lives in different directions. Joint bank accounts were closed, furniture and other assets were divided, but all the while, your Wills stayed in the bottom drawer, unread and forgotten. Until one of you died.

What happens now?

Your ex-de facto wants his or her share, your other family members think “They were never married. Why should she/he be entitled to anything?”. It looks like this might get messy.

Are your other family members right?

Many people assume that because they were never married, their ex-de facto has no future financial claim against them or their estate. People also assume that if they and their ex-de facto partner have divided up their assets at the end of the relationship, their ex-de facto partner couldn’t have a further financial claim against them or their estate. Unfortunately, those assumptions aren’t always correct.

The laws relating to the division of assets after a couple separates are completely separate and distinct from the laws which deal with Wills and inheritances. As such, a person’s Will is not affected by a family law property settlement, which means that notwithstanding the parties agreeing to a division of the relationship assets, if the parties do not update their Wills and one of the parties dies, the agreed  property settlement may not prevent the surviving person receiving a gift left to them in their ex-de facto‘s partner’s Will.

So, can your ex-de facto inherit?

According to a recent Western Australian case, whether your ex-de facto can inherit under your Will may depend on exactly how you referred to your ex-de facto in your Will.

In Blyth v Wilken the Court considered a situation where, by his Will, the deceased left his assets to his now ex-de facto partner.  The parties had separated some three years before the deceased’s death, however eleven years before his death, and when the couple were living together in a de facto relationship, the deceased had made a Will leaving the bulk of his estate to “my de facto wife Kathrine”. Following the parties separation, the Will had not been changed.

The Court found that by inserting the words “my de facto wife Kathrine” in his Will, the deceased didn’t merely intend to benefit Kathrine; he intended to benefit Kathrine because she was his de facto wife. Accordingly, the Court found that, notwithstanding what the Will said, the deceased would not have intended Kathrine to benefit from his estate unless she remained his de facto wife at the time of his death, which of course she was not. The gift to Kathrine therefore failed and Kathrine could no inherit from the deceased’s estate.

Would different words have made a difference?

The decision, in this case, was dependent on the use of the words “my de facto wife Kathrine” in the deceased’s Will. If the Will had merely referred to Kathrine by name, without also describing her as “my de facto wife”, the outcome could well have been very different. That is, despite separating from the deceased almost three years before he died, Kathrine could have received the bulk of her former de facto partner’s estate in accordance with the provisions of his Will.

A word of caution

The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding on the Western Australian Supreme Court, nor other Courts, which could come to a different decision on similar facts.

Just because your Will refers to “my de facto partner such and such” that is not necessarily a guarantee that that person will not be able to benefit from your estate in the event that you die after ending your relationship with him or her.

Conclusion

In most Australian States and Territories (NSW, Victoria, South Australia, Western Australia and the Northern Territory), separating from your de facto partner will not change your Will.

Any gift you leave in your Will to your ex-de facto could still be valid, despite the fact that you and your ex-de facto partner have separated and divided up your assets. It is possible that, based on the decision in Blyth v Wilken, the Court could overturn a gift in your Will to your former de facto partner, but this may depend on how that gift was worded in your Will.

In the ACT, Tasmania and Queensland, termination of a registered de facto relationship will revoke any gift in your Will to your ex-de facto partner. However, this only applies to registered relationships and registered terminations of them, and in the ACT it only applies to registered same sex relationships.

Regardless of where in Australia you live, the safest course of action is to review, and if necessary change, the terms of your Will as soon as possible after the ending of any relationship, even a friendship where you have left a gift in your Will to that friend.

If, for example, your Will leaves your jewellery to “my friend so and so”, would you still want “so and so” to receive that jewellery if you’ve de-friended each other by the time of your death?

Blyth v Wilken suggests that the jewellery may not end up in your former friend’s hands, but would you want to leave that to chance and to the question of whether a Court would follow the Blyth v Wilken decision?

If you or someone you know wants more information or needs help or advice, please contact us on (08) 9335 9877 or complete the form below to request an introductory consultation.

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