It is important when anyone enters a domestic relationship that they update their Will to factor in their new circumstances. If you fail to update your Will it can expose your estate to stressful and costly litigation.
It is important to understand the rights and entitlements a de facto partner has on your estate and how that impacts your other family members and any children you may have.
Can a de facto challenge a Will?
The law allows unregistered domestic partners (de facto partners) to challenge a Will according to Section 90A of the Administration and Probate Act 1958 (Vic).
There are several criteria that a domestic partner or de facto must satisfy before being entitled to challenge a Will.
The most important factors that are considered are:
- The length of the relationship. The deceased and the domestic partner must have been together for a minimum of two years or there must be a child of the relationship
- Whether the deceased and the domestic partner were living together
- The degree of mutual commitment to a shared life
- The degree of financial independence or dependence between the partners
- The ownership, acquisition, and use of property
- The reputation and public aspects of the relationship
If the domestic partner can satisfy to the Supreme Court of Victoria that they satisfy the above factors, they have the same rights as a married spouse. In these circumstances the domestic or de facto partner is entitled to part of the estate of the deceased.
What happens when there is no Will?
Domestic partner's have the most entitlement to their deceased partner's estate under the laws of intestacy if there is no Will in place.
This entitlement comes before any children of the deceased, including children from a previous marriage or relationship.
For example, if an individual has two children from a previous relationship and then enters a new relationship and dies, their new partner may have the greatest entitlement to their estate to the detriment of the deceased's children.
Therefore, it is so important to ensure that your Will is up to date anytime you enter a new relationship.
Our estate and family lawyers can assist you in structuring your affairs so that your estate and assets are dealt with in accordance with your wishes. Properly considering your Will goes a long way to preventing Will disputes between your relatives and your new partner after you pass away. Whether you want your estate to go to your children or to your de facto partner, we can help you.
Guardianship of children - what you need to consider.
If you have recently entered a new relationship and you have minor children from a previous relationship, you can appoint your new partner (or any other individual) as a guardian of those minor children in your Will. These guardianship clauses are of upmost importance if the other parent of your children is deceased as if you do not appoint a new guardian in your Will, your children may end up with Child Services.
Domestic partners do not have the automatic right to take care of children of a deceased partner if they are not the other biological parent. These matters must be dealt with in your Will.
Child custody can be complicated during your lifetime, and more so after a death. The relationship between your de facto partner and children may continue after your death and you should consider what is best for your children. Our family lawyers can help you with any guardianship queries to ensure your children are cared for after your death.
Getting Proper Advice about your Estate & Will
Getting considered advice about your Will prevents disputes arising. A Will can be challenged on several grounds by different parties.
De facto and domestic partners have rights that need to be carefully considered. Your will can be drafted to consider any existing or future de facto relationships.
An expert Wills lawyer will review your circumstances and ensure that your Will is compliant. There are often other considerations such as your property structure and any trusts that need to be dealt with correctly.
There are ways to protect your wishes. Speak to a Wills lawyer to find out how.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.