Changes to how a De facto relationship affects your estate planning

By Janine O'Brien • In Estate PlanningComments Off on Changes to how a De facto relationship affects your estate planning

Recent amendments to the Succession Act 1981 (Qld) in Queensland have changed the impact the ending of a de facto relationship has on a testator’s Will.

If the Will does not state otherwise, the Act now provides that the ending of a testator’s de facto relationship revokes:

  1. a gift to the testator’s former de facto partner, made by a Will which was existing at the time the de facto relationship ends;
  2. an appointment of the former de facto partner as an executor, trustee, advisory trustee or guardian made under the Will; and
  3. any grant of a power of appointment exercisable by, or in favour of, the testator’s former de facto partner made under the Will.

The ending of a de facto relationship does not revoke:

  1. the appointment of the testator’s former de facto partner as trustee of property left by the Will on trust for beneficiaries that include the former de facto partner’s children; or
  2. the grant of a power of appointment exercisable by the testator’s former de facto partner only in favour of children of whom both the testator and the former de facto partner are parents.

A further amendment to the Succession Act 1981 (Qld) has changed the definition of a step-child who is an eligible applicant under a family provision claim to provide that the relationship of stepchild and step-parent ceases on:

  1. The divorce of the deceased person and the step-child’s parent;
  2. The termination of the civil partnership between the deceased person and the step-child’s parent; or
  3. The ending of a de facto relationship between the deceased person and the step-child’s parent.

Unlike marriage or a civil partnership which are formally terminated by a Court-issued order, there is no formal declaration to end a de facto relationship.  The Courts have indicated there are three elements in relation to a de facto separation to terminate the relationship:

  1. The development of an intention to separate on at least one parties’ behalf;
  2. The communication of this intention to the other party; and
  3. Some form of action upon the determination to separate.

Parties to a de facto relationship which has ended will need to keep the three elements in mind to prevent the possibility of future claims against their estate by a former de facto spouse or former step-child.

Should you experience a de facto relationship breakdown, please contact the experienced Wills, Trusts and Estate Planning and Family Law Teams at Bell Legal Group on (07) 5597 3366 or email tcarroll@belllegal.com.au who will be able to assist you.

This publication is for information only and is not legal advice.  You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.

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