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Once upon a time you were happily living together with your de facto partner. Roses were bought, dinners were cooked, finances were shared and Wills were signed leaving all your assets to the other partner in the event of what you then thought of as the far away time of your tragic passing. Thoughts of either of you 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 think that, because they weren’t married, their ex-de facto has no future financial claim on them or their estate. Some people might also think that if they and their ex-partner have divided up their assets, neither one could have a further financial claim on the other. Unfortunately, those assumptions aren’t always correct.

The laws relating to division of assets after a couple separates are completely distinct from those dealing with Wills and inheritances. A Will is not affected by a family law property settlement, which, of itself, cannot prevent someone receiving a gift left to them in their ex-partner’s Will.

So, can your ex-de facto inherit?

According to a recent Western Australian case, the answer might depend on exactly how you referred to your ex-de facto in your Will.

In December 2015, in Blyth v Wilken the Court considered a situation where, in his Will, the deceased left his assets to his now ex-de facto partner, with the parties having separated some three years before the deceased’s death. Eleven years before his death, and at a time when the couple was living together, the deceased made a Will leaving the bulk of his estate to “my de facto wife Kathrine”. The Will had not been changed after the parties separated.

The Court found that by using the words “my de facto wife Kathrine”, 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 wanted Kathrine to benefit from his estate as she was no longer his de facto wife at the time of his death. The gift to Kathrine, therefore, failed and other family members benefitted from the deceased’s estate.

Would different words have made a difference?

The decision in this case depended 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.

A word of caution

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.

If you or someone you know wants more information or needs help or advice, please contact Brian Tetlow or Emma Bragg on (02) 6140 3263 or email [email protected].