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Changes to the Succession Act 1981 – bringing defacto relationships into line with marriages

by Kristy Schaeffer and Bill Delaney

From 5 June 2017 a number of changes to the Succession Act 1981 came into effect (pursuant to the Court & Civil Legislation Amendment Act 2017 No. 17).  These changes have the effect of bringing de facto relationships into alignment with traditional marriage relationships in two particular ways:
 

  • Firstly, a new section 15B provides that the end of a defacto relationship now has the same effect on a testator's Will as a divorce - that is, it revokes any benefits left to the testator's former defacto partner and revokes the former defacto partner’s appointment as an executor.  These provisions will take effect unless a contrary intention appears in the Will (section 15B(3)).  We highlight for our clients that there still remains an important practical difference between a divorce and the end of a de facto relationship, namely, that a divorce involves the issue of a Divorce Order from the Federal Circuit Court of Australia.  There exists no equivalent formal piece of evidence to prove the end of a defacto relationship.  For clients who are in a situation which involves the end of a defacto relationship, we recommend you consider reviewing and possibly updating your Will, or providing us with instructions to formalise or document the end of the defacto relationship to ensure the new s15B applies in your situation.

 

  • Secondly, changes to section 40A(2) and (3) now clarify that a stepchild includes the child of one party to a defacto relationship as a stepchild of the other party.  Accordingly, such a stepchild is an eligible applicant to bring a Family Provision Application against the estate of the deceased 'step-parent' provided the defacto relationship subsisted at the death of either of the parties to the defacto relationship (this is the same position as a stepchild where there is a marriage relationship between the child’s parent and the other party which subsists at the date of death of either party).   

 
We have been assisting clients with estate planning, including the making of Wills and enduring documents, estate administration and estate disputes for over 100 years.  Particularly if you have an estate with complicated assets or family structures we would recommend that you come and see us for advice on the many issues you should consider when making your Will and establishing a thoughtful, considered and fair estate plan.  We are interested to ensure that our clients make good decisions to protect their estate from costly estate litigation and protect your family members from the risk of conflict and disputes following your death.