Does a de facto spouse left nothing in her de facto’s partner’s Will have any rights?

Q.     Does a de facto spouse left nothing in her de facto’s partner’s Will have any rights?

A.       Yes, she has a right to make an application to the Court and the Court may make provision for her

Case Study

The deceased died aged 74 years. He was survived by his de facto spouse, who had been his de facto spouse for 12 years. The de facto spouse was 50 years old.

The deceased had 3 adult children from his first marriage. The de facto spouse had 3 adult children from a previous marriage.

The deceased made his last will a month before he died. The deceased left his whole estate to his 3 children. His estate was worth about $1.2 million.

The deceased made no provision for the de facto wife but gave a direction to his executors to allow the de facto spouse to stay rent free for 4 months in the deceased’s property where he and the de facto wofe had been living together at the time of his death.

2 years before his death, the deceased and the de facto spouse executed a financial agreement under section 90UC of the Family Law Act. As the death of the deceased was not a breakdown of the relationship, the parties’ rights and obligations that may have arisen under the agreement in the event of a breakdown of their relationship did not arise on the death of the deceased. This meant that the term in the agreement that the deceased agreed that, in the event of a breakdown of the relationship, he would give the de facto spouse $200,000.00 was not enforceable. The Financial Agreement also provided for a release by the deceased and his de facto spouse of their rights to apply for a family provision order, subject to the approval of the Court but they did not apply for any Order.

The Court held that the deceased formed the intention to make provision for his de facto spouse $200,000 in the event of his death.

The de facto spouse had assets of about $225,000. Her income exceeded her expenses by about $1,000 per month although she was not paying anything for her accommodation at the time of the hearing.

One of the deceased’s adult children had about $850,000 in assets with her husband and their income was slightly more than their expenses.  Another of the deceased’s adult children had assets of approximately $7500,000 with his wife and their income exceeded their expenses although they had significant expenses in the near future. The other adult child had net assets of $218,000 and had an income exceeding his expenses.

The Court ordered that the de facto spouse receive a lump sum amount of $300,000 from the deceased’s estate.

If you require advice on your rights when no or inadequate provision is made for you in a Will, telephone Kathy on: 0418 285 307 or (02) 9918 6575 or send her an email at: pittwaterfamilylawyers@gmail.com