Ball + chain** - An estate planning lesson for de facto couples

Previous posts have considered the impact of separation and divorce of a marriage on estate planning documentation.

As mentioned in last week’s post, the general view has been that analogous situations on the breakdown of a de facto relationship do not have the same consequences.

As last week’s post concluded however, whenever there is a significant change in a personal relationship, best practice dictates that there be an immediate review of all estate planning arrangements.

The case of Blyth v Wilken [2015] WASC 486 is a stark reminder of this principle.

Relevantly, the factual matrix here involved a willmaker who left a final will giving the majority of his estate to his ‘de facto wife’. The relationship between the will maker and his de facto ended after the will was made and around three years before he died. No updated will was prepared.

In deciding that the former de facto wife was not entitled to receive anything under the will, the court essentially applied the same principles that would have been relevant had the couple have been married and subsequently divorced.

In other words, the court decided that the gift was made solely because of the de facto relationship.

Once that relationship ceased, the court determined it would have been the willmaker’s intention that the gift should also fail.

In most respects, the decision here contradicts the generally accepted position and arguably leads to a conclusion that if the willmaker had simply referred to his spouse by her name and had not mentioned ‘de facto wife’, then the gift would have in fact stood.

As usual, please make contact if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the XTC song ‘Ball and chain’.

View here:

Before too long ** - when not even living together is a de facto relationship

As previous posts have touched on, in order to be in a de facto relationship, two people need to ‘live together as a couple’.

The case of NSW Trustee and Guardian v McGrath & Ors [2013] NSW SC 1894 highlights that in order to live together as a couple, you do not necessarily have to share a particular residence.

As is often the case in disputes about whether a de facto relationship existed, following the death of one of the parties, the facts in this case were relatively complicated.

In summary:

1. The couple, with their respective life spouses had been friends for around 20 years.
2. When the respective life spouses passed away, the couple formed a close bond, which they shared for around 13 years.
3. They never lived together as such, however the relationship was often described as ‘boyfriend/girlfriend’.
4. They spoke every night on the phone.
5. They would meet at least a couple of times a week.
6. They would often holiday together.
7. the couple also attended all family functions (for example, birthdays, Christmas day etc.) together for one side of the family - in relation to the other side of the family, there was significant estrangement and no family functions were attended.

Following a dispute about the distribution of the estate on the first of the couple to die, the entitlement of the other party to the relationship turned on whether he satisfied the definition of a de facto.

The court decided that although the case was borderline, there was sufficient evidence to support the existence of a de facto relationship, given how devoted the couple seemed to be to one another, even though they never chose to share a residence for a lengthy period of time.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** for the trainspotters, the title today is riffed from the Paul Kelly song ‘Before too long’. View hear (sic):