De Facto Partners in Wills


The concept of testamentary freedom means that you can have anything you want in your Will.

The Court will try to uphold your testamentary wishes, so that what is expressed in your Will can be implemented the way you wanted it implemented.

De facto left out of the Will?

Legal problems arise upon the death of a de facto spouse.  If no provision or inadequate provision is allowed to the surviving partner in the Will, then the court can be asked to intervene.

What can I get out of the Will as a defacto?

The surviving de facto partner can receive an entitlement even if this is not specified in the Will.  The court will consider the past contributions of the partner towards the wealth and welfare of the deceased and the needs of the surviving partner.

The following factors will be considered:

  1. The deceased’s Will, if any;
  2. Reasons for the gifts in the Will;
  3. The deceased’s intentions;
  4. The nature of the relationship between the couple;
  5. The length of the relationship;
  6. Any obligations to the surviving partner;
  7. The financial needs of the surviving partner;
  8. The physical and mental needs of the surviving partner;
  9. The age of the surviving partner;
  10. How the surviving partner contributed to the wealth of the estate and the welfare of the deceased;
  11. If benefits have already previously been given to the surviving partner;
  12. Consideration as to how the surviving partner was previously being maintained;
  13. The character and conduct of the surviving partner;
  14. The size and nature of the funds of the estate;
  15. If giving more to a surviving partner would have an effect on other beneficiaries.

This is commonly known as a Testator’s Family Maintenance (‘TFM’) application under part IV (or a ‘part IV claim’).

A current Will, properly drafted, can avoid most of these issues.

Call us today to update your Will for any changes in your life or to review your Will to ensure covers any areas of concern.