Why you need a Will if you are not Married
Legal recognition of de facto relationships has created greater protection for the rights of de facto partners. However, it may have unforeseen consequences for your estate, especially if you do not have a will.
It is important to be aware of how the rules relating to de facto relationships may affect your estate and your testamentary intentions. In particular,
- If you are single but there is a person who could claim to be your de facto partner.
- If you have a de facto partner and do not wish to make provision for them.
- If you have a de facto partner and wish to make provision for them.
De facto relationships
A person is in a de facto relationship with another person if they have a relationship as a couple living together and are not married or related.
There is no precise test for determining whether someone is in a de facto relationship or not.
When determining whether people are in a “relationship as a couple”, all the circumstances are taken into account, including:
- The duration of the relationship
- The nature of their common residence
- Whether a sexual relationship exists
- The degree of financial dependence or interdependence
- The ownership, use and acquisition of property
- The care and support of children
- The performance of household duties
- How the relationship is known by family, friends and the public
- The degree of mutual commitment to a shared life
The above list is not definitive however. A de facto relationship can exist where the parties have separate residences and are not financially dependent on each other, or where no sexual relationship exists.
For a relationship to be de facto it does not have to be exclusive. A person could be in a de facto relationship with one person while at the same time being married to someone else or a person could be in a multiple de facto relationships at the same time.
You may be in a de facto relationship without even being aware of it.
Intestacy
If you die without a will (or without a valid will), your estate is distributed in accordance with the rules of intestacy.
- Under the rules of intestacy, your “spouse” may be entitled to part or the whole of your estate. For example, if you have no children, your spouse is entitled to the whole estate.
- The definition of “spouse” includes a de facto relationship that:
- Has been in existence for a continuous period for 2 years, or
- Has resulted in the birth of a child.
1. If you are single…
Because the definition of de facto relationship is so broad, it is possible for a person to claim and provide evidence that a de facto relationship exists where in fact there was none.
For example, you may be sharing an apartment with someone; the lease and utilities are in both your names; you both contribute to the household duties; you may have purchased some of the furniture for the apartment together and may even go on holidays together. You may have even once been in a relationship together but have since separated and continue to live together until one of you can find alternative accommodation.
If you have died without a will, your housemate may apply to receive your estate or part thereof claiming to be your de facto spouse. Your family or friends may try to rebut that claim and may be successful, however your estate could be required to cover the costs of the legal battle.
2. If you do not wish to make provision for your de facto partner…
You may be in a de facto relationship but wish your estate to go elsewhere, i.e. to your family, friends or even a charity. However, if you die without a will, your estate will be distributed in accordance with the rules of intestacy.
Even if you have expressed your wishes to your partner and trust your partner to follow through on them, the court may enforce the rules of intestacy.
For example, you agree with your partner Shirley that on your death your estate is to be gifted to the RSPCA. Shirley applies to the court for permission to make the gift, but is unable to provide any evidence or proof of your wishes. The court rules that the whole of your estate is to go to Shirley as your surviving de facto partner.
After receiving your estate, Shirley transfers it the RSPCA in accordance with your wishes. However, Shirley is deemed to have given away her property and as a result loses her pension.
Making an oral or informal arrangement for the distribution of your estate is not recommended as:
- It depends entirely on your partner to carry out those instructions, and
- Even if your partner does carry out your instructions, it may have detrimental consequences for that person.
3. If you wish to make provision for your de facto partner…
Even if you are in a de facto relationship and want your partner to receive the whole or part of your estate, if you have not made a will this puts the onus on your partner to prove that you were in a de facto relationship.
This also opens up the possibility of someone challenging that there was a de facto relationship.
Both proving the existence of the de facto relationship and defending that claim, if required, can cause unnecessary costs to your estate and unnecessary labour and stress for your partner.
In particular, it can be intrusive and embarrassing to have to relate personal and intimate details of the relationship to the Court and other parties.
In this case, to protect your testamentary wishes, you should execute a will clearly identifying the person as your ‘de facto partner’ and the bequest you wish to leave them.
Family provision claims
Whether you are in a de facto relationship or not; whether you have made provision for your de facto partner or not; an “eligible person” may make an application to the court for a family provision order. In which case, the court will consider whether greater provision should be made from the estate for the maintenance, education or advancement in life of the eligible person.
An “eligible person” includes:
- A person with whom the deceased was living in a de facto relationship at the time of death.
- A person with whom the deceased person was living in a close personal relationship at the time of death.
De facto relationship
For the purpose of making a family provision application, “de facto relationship” is defined as set out at the start of this article. It is important to note that whereas under intestacy the definition of “spouse” requires the relationship to be of two years duration or more or to have resulted in the birth of a child, this is not required for a family provision claim.
Therefore, if you have been with your partner for only one year at the time of your death and have not had any children together, your partner will not be entitled to any part of your estate under intestacy. Your partner may, however, make a family provision application for provision from the estate.
If you want to leave your estate to your partner, but you have not been together for two continuous years and do not have any children together, you should execute a will to this effect. This can save your partner from having to make a costly and drawn-out family provision application.
Close personal relationship
A person with whom the deceased was living in a close personal relationship at the time of death is also eligible to make a family provision application, if there are factors which warrant the making of the application.
A “close personal relationship” is a relationship between two adults, whether or not related, who are living together, one or each of whom provides the other with domestic support and personal care.
This does not apply where the domestic support and personal care are provided for a fee, reward or on behalf of another person or organisation.
For example, if at the time of your death a friend is living with you in order to provide care for you while you recover from an injury and help with the household chores, that friend may be eligible to make a family provision application against your estate whether or not you have made a will.
- If, in that situation, it was your intention to leave your friend a gift in recognition of the care they have provided, you should execute a will which sets out the terms of that gift. Thereby saving your friend from having to make an application to the Court, providing evidence of your intentions and potentially having their application denied.
- If it was not your intention to leave your friend anything, you should execute a will and Statutory Declaration to mitigate the possibility of a family provision claim.
Case example
The following is a good case example of the labour and effort required in proving or disproving a de facto relationship and the various circumstances that the Court will take into consideration.
In the case of Sadiq v NSW Trustee & Guardian [2015] NSWSC 716, Christina Coombes died in June 2013 without a will. At the time of her death, she was not married and she did not have any children.
The estate consisted of real estate in Paddington ($700,000) (“the Paddington property”) and money in the bank ($78,911).
Sadiq applied to the Court seeking a declaration that he was the deceased’s “spouse” under intestacy or, failing that, seeking a family provision order out of the estate, claiming to be in a de facto relationship with the deceased at the time of her death.
In order to prove that he was the deceased’s “spouse” under intestacy, Sadiq had to show that he was living with the deceased in a de facto relationship that had been in existence for a continuous period of 2 years. Sadiq claimed to have lived with the deceased and have maintained an intimate relationship with her, despite an 18 years age difference – at the date of her death, Christina was 75 and Sadiq was 57.
Evidence against a de facto relationship:
- She was receiving the pension but had never reported to Centrelink of having a de facto.
- There was no evidence in the house that anyone else lived there.
- A neighbour who had lived on the street for over 70 years and saw Sadiq visit the property to deliver produce. The neighbour stated that in July 2013 Sadiq asked her what had happened to the deceased and it was the neighbour that told him she had passed away.
- The deceased never indicated to her neighbours, to social workers, medical professionals or Centrelink that she was in a de facto relationship.
- A neighbour who lived next door to the deceased for about 9 years gave evidence that the deceased lived alone. This was the neighbour who called the ambulance to take the deceased to hospital.
The court ruled that, based on the evidence before it, it was unable to conclude that Sadiq and the deceased lived in a de facto relationship at any time or that they lived together as a couple. Thus, Sadiq was not the “spouse” of the deceased and his claim to the whole of the estate on intestacy failed.
Sadiq’s family provision application for provision from the estate also failed as the court was unable to conclude that Sadiq was living in a de facto relationship or a close personal relationship with the deceased at the time of her death.
If you would like to execute a will, please contact us to discuss.
As well as your will, legal recognition can also affect you while you are alive. See our article on Do I Need a Power of Attorney and Enduring Guardian? for more information.