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 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 were 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

The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding on the West 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 in your Will to your ex-de facto could still be valid, despite the fact that you 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, depending on how that gift was worded.

In the ACT and Tasmania 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.

In Queensland amendments to the Succession Act which came into effect on the 5th June 2017 mean that the end of a de facto relationship has the same effect on a Will as a divorce. Unless a contrary intention appears in the Will the following are revoked:

• a gift left to a former de facto;
• appointment of a former de facto as executor or trustee of the Will; and
• the grant of a power of appointment (in relation to a trust) in favour of a former de facto.

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.

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) 8155 5322 or email [email protected].