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Recent Laws on Wills;

The consequences of failing to leave an up to date, properly executed Will can be extremely serious. The belief that the estate will simply revert to your immediate loved ones may not always be sound and even when such is likely to be the case, any court ordered distribution may not adequately reflect a deceased’s intentions and will certainly involve unnecessary delay and expense. Matters can take many years to be resolved.

A properly executed Will must, among other things, allow the distribution of your estate in it’s entirety, this includes your personal property and real estate. Such a will can also specify what accounts or assets should be applied to service any debts of the estate. A properly executed Will also has the effect of replacing any previous Will or testamentary document.

The law for many centuries took an extremely rigid approach to the creation of Wills. The courts would refuse to recognise as Wills, documents that did not comply with the well enunciated processes required to create a valid testimentary document. On occasion, the rigidity of this approach invalidated documents that common sense suggested, accurately reflected the testator’s intentions.

The legislature has addressed this rigidity through S8 of the Succession Act 2006 NSW whereby the Judicial Dispensing Power has been created and through which, the courts are able to admit as Wills, documents that are unsigned and unwitnessed, even suicide notes have been admitted. Of course having such documents admitted is by no means a straightforward process.

Any will, even when correctly drafted, can be contested. When preparing a will it is essential to consider whether the document is likely to be contested by any party who may feel aggrieved. The area of law surrounding family provision is evolving and has consequences for both testators and beneficiaries.

In one recent decision a sibling who had had no contact with a testatrix for 35 years was left a small amount in the testatrix’s will, the reasons for this were mentioned in the will. The majority of the relatively modest estate was distributed among the testatrix’s other four children. The estranged sibling successfully contested the will and her proportion of the estate was increased dramatically.

Defining a de facto relationship.There has been a traditional reluctance by sections of the legislature and the judiciary to give the same status to de facto couples as to married couples. The argument propounded in a variety of cases has been that the act of marriage denotes a commitment to a shared existence evidenced by the act itself. The law has evolved, but the bona fides of domestic partnerships outside of marriage remain subject to scrutiny. Evidence of commitment is at the forefront.

Areas where the legal status of non-married spouses is of relevance typically involve family law and deceased estates.

Relationships under Family Law

When a de facto relationship breaks down matters often under consideration include the distribution of property and duties concerning financial support or maintenance. Under S90SB of the Family Law Act the court may make orders for financial maintenance and orders or declarations concerning property interests, only if the court is satisfied; that the period, or the total of the periods, of the de facto relationship is at least 2 years; or that there is a child of the de facto relationship; or that; a party making an application made substantial financial or non financial contributions to the relationship and that a failure to compensate for this would result in serious injustice; or that the relationship is or was registered under a prescribed law of a State or Territory.

In New South Wales relationships, including same sex relationships, can be registered through the NSW Registry of Births, Deaths and Marriages.
As two people can live together and not be in a de facto relationship the Family Law Act under s4AA states that a person is in a de facto relationship with another person if, the persons are not legally married to each other, are not related by family and, having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis. Under the act a de facto relationship can exist between 2 persons of the same sex and a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Circumstances the court can consider in determining whether persons have a relationship as a couple may include any or all of the following; the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; the care and support of children; the reputation and public aspects of the relationship. Courts involved with Family Law issues are given wide discretion as to how a final determination is made.

Relationships under Inheritance Law

In New South Wales the spouse of a person who dies intestate, that is without leaving a valid will, can make some priority claims against the deceased estate. Under the Succession Act the spouse of an intestate person is one who was either married to the intestate immediately before the intestate’s death or who was in a domestic partnership with the intestate immediately before the intestate’s death.

A domestic partnership is defined as either one that is registered or a de facto relationship that has been in existence for a continuous period of 2 years or has resulted in the birth of a child. The definition of a de facto relationship in the Succession Act 1986 NSW is that which is defined by the Interpretation Act 1987 NSW, the definition therein, essentially mirrors that found in the Family Law Act and includes same sex relationships.

As mentioned above, defining who is the surviving spouse, or spouses, at the time of death, especially in cases of intestacy, has particular legal relevance and often requires case by case analysis.