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Will changes for Defacto couples

It has long been the law that for married couples, the effect of divorce is to revoke:

  • any gift made by will in favour of the spouse and
  • any appointment made by will of the spouse as executor, trustee or guardian.

No such provisions applied in the case of defacto couples if they happened to suffer a relationship breakdown.  Each continued to be an executor (if appointed) or a beneficiary (if given a gift) in the Will of their former defacto spouse unless, of course, the former defacto spouse took steps to revoke their Will.

Some years ago amendments were made to the Family Law Act 1975 to treat all defacto couples essentially the same as married couples regarding property settlement following a relationship breakdown.

Now amendments have been to the Succession Act 1981 which treat separating defacto couples in much the same way as divorced couples when it comes to their Wills.

New Section 15B of the Succession Act 1981 now provides for the effect of the end of a defacto relationship on a Will.

Among other things, the section provides that the ending of a testator's (Will maker's) defacto relationship revokes:

  • any gift to the testator's former partner made by a Will in existence when the relationship ends;
  • an appointment made by the Will of the former defacto partner as an executor, trustee, advisory trustee or guardian.

It is important to note, however, that the ending of a testator's defacto relationship does not revoke the appointment of the testator's former defacto partner as trustee of property left by the Will on trust for beneficiaries that include the former defacto partner's children.

These amendments to the Act now provide a measure of certainty to separating defacto couples (and also to same sex couples who have, or have had, a registered civil relationship), in relation to the effect of their Wills upon relationship breakdown.

It follows from the above that if you have suffered a defacto relationship or civil partnership breakdown you should ask us to review with you the terms of your Will.  The effect of the changes may mean that the whole of your estate is not properly disposed of and that a new Will is required.

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