De facto claims on estate

The importance of updating a will often becomes apparent too late for the surviving members of a family. But what happens when you’re in a de facto relationship?

Q. David
What happens to a will when one of the de facto partners passes on and the will has not been altered to care for the other, even if the relationship has been for over 12 years? Do they have a claim? What is necessary for the surviving partner to have their contributions to the relationship addressed over and above any children from a previous marriage.

A. Provided by Rod Cunich, Slater & Gordon

I assume the deceased has an old will which benefits his children and makes no mention of the surviving de facto. It is most likely the surviving de facto has a strong claim to a portion of the estate, perhaps even a significant portion.  Each state and territory has legislation which makes provision for ‘eligible persons’ to make a claim against an estate where the deceased did not make adequate provision for a surviving de facto.  The courts consider a range of issues in making a determination including the nature and extent of the relationship, the nature and extent of any obligations and responsibilities owed by the deceased to the surviving de facto and the nature, the de facto’s financial circumstances and extent of the deceased’s estate, to name just a few. A person considering making a claim must act quickly, however, as there are tight time frames within which a claim can be brought.

Written by Debbie McTaggart



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