Several recent court cases dealing with disputes over deceased estates show changes in the way de factos and step-children are recognised under the law, with the trend for de facto relationships to be treated in the same way as marriages.
In a landmark Western Australian case in 2015, Blyth v Wilken, the deceased left a will giving the bulk of his estate to “my de facto wife Katherine Mary Murray.”
The will was written in 2003. The couple broke up in 2011 and the deceased died in 2014 without changing the will.
The court ruled that Murray was not entitled to the “gift” of the will because the relationship had ended and its view was that the deceased had only intended Murray to receive the gift if she continued to be his de facto.
Golnar Nekoee, an associate in the estate and business succession practice at BAL Lawyers says what is important about the ruling is that “the court held de facto relationships on the same platform as marriages when it came to the interpretation of the will.”
In May, the Victorian Court of Appeal recognised that step-children of a de facto couple had the same rights as step-children of married couples for the purposes of family provision applications.
Nekoee says the more recent case, Scott-McKenzie v Bail, overturns the common law principal that a relationship between a step-child and a step-parent is only recognised when the parties are married.
The case was brought by a step-child whose mother had been in a “domestic relationship” with the deceased for 40 years, until the mother died in 2011.
Following the death of the step-child mother, the deceased commenced a domestic relationship with another woman. When he died he left his entire estate worth about $1 million to her.
The court found that the step-child/step-parent relationship of de facto couples is broken by separation of the couple, not by the death of one of the partners.
In June, the Queensland Parliament amended the State’s Succession Act, making two significant changes.
A new section says that the end of a de facto relationship revokes any gifts to the de facto partner and also the appointment of the de facto partner as executor.
“This in effect treats de facto relationships the same as marriages,” Nekoee says.
The other significant change is that for the purpose of making a family provision claim, a step-child/step-parent relationship is deemed to have ended upon the ending of the de facto relationship and not merely because the step-child’s parent died before the deceased person or if the deceased person remarried or entered into another relationship after the death of the step-child’s parent.
“We are seeing changing familial values in Australia,” Nekoee says.
“The takeaway is that you may need to carefully consider children from a de facto partner when writing you will. If you are a child of such a relationship, take considered advice in relation to any potential claim.”
