Succession changes – The effect of the end of a de facto relationship on a Will, and a Stepchild’s standing to bring a family provision application

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The Court and Civil Legislation Amendment Act 2017 (Qld) has introduced two main changes to the Succession Act 1981 (Qld) (the “Act”) as of 5 June 2017.

The effect of section 15B: What happens to a Will when a de facto relationship ends?

The amending legislation inserted a new section 15B.

In a nutshell, the addition of section 15B of the Act means that when a de facto relationship ends, the following are revoked:

  • Gifts made to the former de facto partner in a Will;
  • The appointment of the former de facto partner as the executor of a Will, as a guardian, and in some cases, as trustee or advisory trustee;
  • The grant of a power of appointment to the former de facto partner in a Will.

This essentially means that the effect of the end of a de facto relationship is now the same as a divorce or the end of a civil partnership. This revocation will apply unless the Will-maker expresses a contrary intention in their Will.[1]

It is prudent to take legal advice in preparing your Will if you do not want this section to revoke your wishes in your Will regarding a de facto partner.

Changes to section 40A: Clarifying when a ‘stepchild’ has standing to make a family provision claim

The definition of ‘stepchild’ in section 40A (and section 5AA) of the Act already included the children of a de facto partner (or of a partner in a civil partnership). To be clear, if a deceased person has left the child of their de facto (or civil) partner out of their Will (even if that child was not their own), that child may have standing to bring a family provision application.

The changes to section 40A of the Act determine that if the de facto relationship (or civil partnership) between the deceased person and the stepchild’s parent ended before the death of the deceased person, the stepchild would cease to be a ‘stepchild’ for the purpose of bringing a family provision claim under the Succession Act.  The child would therefore not have standing to bring a family provision claim against the estate of the deceased, unless that child is under 18 years old and was also being “wholly or substantially maintained or supported” by the deceased as a dependant.[2]

The relevant additions to section 40A of the Act are in bold below:

(2)      The relationship of stepchild and step-parent stops on—

(a) the divorce of the deceased person and the stepchild’s parent; or

(b) the termination of the civil partnership between the deceased person and the stepchild’s parent; or

(c) the ending of the de facto relationship between the deceased person and the stepchild’s parent.

(3)      To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because—

(a) the stepchild’s parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died; or

(b) the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.

 (4)      In this section— termination, of a civil partnership, means termination under the Civil Partnerships Act 2011, section 14(1)(b) or 19.

 The practical impact of the changes

 If you were previously in a de facto relationship and drafted a Will nominating your previous de facto partner as a beneficiary or executor, you should review your Will and, if necessary, take steps to amend it in light of the addition of section 15B.

If you are in a de facto relationship and your partner passes away, a lawyer can assist in advising you regarding your rights.

In the case of a marriage or civil partnership coming to an end, the divorce order or the civil partnership record will specify the date on which the relationship has ended. Due to the uncertainty in proving the existence of a de facto relationship, the end of a de facto relationship can be more difficult to determine.  De facto partners and other family members of Will-makers can find themselves in difficult disputes regarding this very issue.

We have outlined some of the factors the Court uses in determining whether a de facto relationship exists in our website article available here: De facto or Simply Close Friends.

In order to have standing to bring a family provision application under the Succession Act 1981 (Qld), a de facto partner must have been living together with the deceased continuously “for at least 2 years ending on the deceased’s death”,[3] on a “genuine domestic basis” as defined by section 32DA of the Acts Interpretation Act 1954 (Qld). The following factors may be taken into account:

  1. the nature and extent of their common residence;
  2. the length of their relationship;
  3. whether or not a sexual relationship exists or existed;
  4. the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. their ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life, including the care and support of each other;
  7. the care and support of children;
  8. the performance of household tasks;
  9. the reputation and public aspects of their relationship.[4]

For children of de facto and civil partner relationships, the amendments to section 40A mean they may be faced with the difficult task of proving that their parent and step-parent were in a relationship at the time their step-parent dies (or when their parent died, if their parent dies first), in order to bring a family provision application against their step-parent’s estate.

How Corney & Lind Lawyers can help

Our experienced Estates & Elder law team can assist you in navigating the complexities of making a claim against a step-parent’s deceased estate, or quite possibly defending a loved one’s estate from the claims of a previous de facto partner or their children.

If you need assistance with Will drafting, our Estates & Elder law team can help you ensure that your Will is drafted to correctly and accurately reflect your testamentary wishes. Call our Business Development Officers on 07 3252 0011 or email us today to make an appointment.
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This article was written by Kathleen Watt (Associate).

[1] Succession Act 1981 (Qld), s 15B.

[2] Ibid, ss 40, 41.

[3] Ibid, s 5AA(2).

[4] Acts Interpretation Act 1954 (Qld), s 32DA(2).