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Can I contest a will of someone that I was in a de facto relationship with?

The person that I was in a de facto relationship with has passed away and I’m not in the will. What do I do?

This situation is more common than you might think. Quite often a person might make a will and subsequently over time, as their life moves on, forget to update their will as their circumstances change. Generally speaking, if someone has made a valid will during their lifetime which has not been revoked (by either destroying the original will or making a new will) the will that has been validly made will continue as that person’s “last will” – even if it was made 30 or more years before their death.

In circumstances where someone has died leaving a will made a long time ago (which is considered the valid last will) and a de facto spouse is left without any provision, the only recourse for that spouse will likely be to file a claim for family provision, which is commonly referred to as “contesting a will”.

If it can be shown that a claimant was in a de facto relationship with a deceased person as at the date of death, they will typically have a strong claim as the Courts consider that a deceased person has the strongest moral obligation to provide for their spouse (which includes a de facto spouse).

The process of making a claim for family provision is dealt with in our Unfair Wills website at https://www.unfairwills.com.au/challenge-a-will/. This article will deal with the question of what is considered a de facto spouse when making a claim for family provision?

What is a de facto relationship?

Under the Succession Act, the term de facto spouse or de facto relationship is not defined, however the term “de facto relationship” has become a very widely used term in everyday language in Australia. The Supreme Court has commented on the term de facto relationship in the following way:

“The statutory concept of ‘a de facto relationship’ is not far removed from the common understanding of such a concept in Australian society. The expression ‘de facto relationship’ evolved, in common parlance, as both a comparison, and a contrast, with the relationship of marriage. A ‘de facto relationship’ was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in a relationship of marriage, save for the solemnities involved in a formal exchange of wedding vows”

Under law, when making a claim for family provision as the alleged de facto spouse, it is Section 21C of the Interpretation Act which lists factors to consider in determining whether a de facto relationship exists.

Section 21C (3) lists the following factors as things which must be considered when trying to work out if someone is in a de facto relationship. All of these factors are not necessary for a determination that someone is in a de facto relationship, and it will always depend on the precise circumstances of the situation.

“(3) Determination of ‘relationship as a couple’

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

As can be seen, a wide range of factors come into play in the determination of whether two people are in a de facto relationship, and even then, it is still the individual and specific circumstances of the relationship which are the most important thing.

If you have recently lost a loved one who you believe you were in a de facto relationship with, we have a number of experienced Wills and Estates practitioners who are able to provide you with sensible, reasonable, and expert advice. Please give us a call today.

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