Can you contest a will as a de facto spouse?

Date: Oct 03, 2014

These days, the way families are constructed has changed considerably, with subsequent impact on the way that wills and estates are managed. One of the main expressions of these changes has been the growing number of de facto partners - individuals who are in a relationship but have not had that relationship recognised through a legal union like a marriage.

So what position is a de facto spouse in when their partner passes away, and can they contest the deceased's will?

The short answer to this question is yes. De facto partners are one of the groups that are eligible to contest a will under the Succession Act 2006. This means that those in a close relationship with the deceased, including those in a same-sex relationship are eligible to contest a will.

Like every group considering whether or not to contest a will, it is important to establish the grounds on which a challenge can be mounted.

De facto partners will need to prove that they have not received an adequate provision in a will. If the partner is choosing to contest in order to receive a larger share, they will need to prove that they are in a financial position whereby a larger sum would be needed to support their lifestyle.

Of course, if the deceased has left no provision for their de facto partner, in favour of other beneficiaries, this may be more likely to be accepted by the court. Of course, this will depend on the reasons behind not including a de facto partner as a beneficiary in the first place.

What if a partner passes away without a will?

Passing away without a will - a condition known as intestacy - can be a troubling time, as the estate will then be assigned based on a calculation conducted by a preset formula.

While this might be a concern for these partners, the good news is that those who were in a de facto relationship with the deceased are eligible for a share of this estate, following the same rules as a married person.

This means that if an individual passes away intestacy and without children, their de facto partner will be eligible to inherit their entire estate.

For anyone in a de facto relationship, it will pay to discuss your options with a wills and estates lawyer. They can provide a greater level of information on the rights that accompany a de facto relationship and also offer advice on your estate planning.