QLD How to Ensure De Facto Doesn't Contest My Will?

[Robert01]

Hi
I'm 80 years old, stuck in bed, with not long to go. I have a de facto I have lived with for 18 months. I enjoy her company at this difficult time but she does not like any of my family and for no real reason.

I have always paid my way when I lived with her, shouted her a car, a shed for the car, paid many household bills,took her on 3 big holidays and given her about 30,000 in cash. Happy to help her out but my will is for my kids and I fear her family will coach her into contesting it and ruining my plans to pass on my estate to my kids and force the kids into a drawn out legal case with an unknown outcome.

Please help. Is there anything I can do?

 

[Sophea]

Ways to avoid making provision for your de facto in your will are limited. I would start by considering whether she would be legally considered a de facto for the purposes of succession law. This is the definition given in the Acts Interpretation Act which you can look at here: http://www.austlii.edu.au/au/legis/qld/consol_act/aia1954230/s32da.html

If she is a de facto then she will likely be able to make a claim if you do not provide sufficient provision for her from your estate.

The first thing you can do is accompany your will with a memorandum which sets out the reasons why you have divided your estate between your children and you have not provided a substantial gift to your de facto. You could site your many gifts to her prior to your death as being sufficient provision for her etc. This can be shown to the court by your children to prove that you had a good reason and strong intention to exclude her in order to provide properly for them. However, it does not guarantee that she will not succeed in making a claim.

Your other option is to make pre-death gifts of your property to your children, however if you have a sufficient connection to NSW (by living there or owning property there or other reason) the notional estate laws mean that a court can claw back such gifts to award to your de facto if she succeeds in making a family provision claim. So that won't work. It also leaves your children open to challenge on the basis that they have received a double payment. I.e the pre-death gift and post-death gift made in the will.

Another option (again not an option that will work in NSW due to the notional estate provisions) is to make your children joint owners of any property you have as "joint tenants". Any property owned as joint tenants automatically pass to the surviving tenants if one dies - bypassing the will. However this may expose them to certain taxes.

I would speak with an estate lawyer about it. This area is very complex and convoluted and needs to be tailored to your specific circumstances.

 

[Robert01]

Ways to avoid making provision for your de facto in your will are limited. I would start by considering whether she would be legally considered a de facto for the purposes of succession law. This is the definition given in the Acts Interpretation Act which you can look at here: http://www.austlii.edu.au/au/legis/qld/consol_act/aia1954230/s32da.html

If she is a de facto then she will likely be able to make a claim if you do not provide sufficient provision for her from your estate.

The first thing you can do is accompany your will with a memorandum which sets out the reasons why you have divided your estate between your children and you have not provided a substantial gift to your de facto. You could site your many gifts to her prior to your death as being sufficient provision for her etc. This can be shown to the court by your children to prove that you had a good reason and strong intention to exclude her in order to provide properly for them. However, it does not guarantee that she will not succeed in making a claim.

Your other option is to make pre-death gifts of your property to your children, however if you have a sufficient connection to NSW (by living there or owning property there or other reason) the notional estate laws mean that a court can claw back such gifts to award to your de facto if she succeeds in making a family provision claim. So that won't work. It also leaves your children open to challenge on the basis that they have received a double payment. I.e the pre-death gift and post-death gift made in the will.

Another option (again not an option that will work in NSW due to the notional estate provisions) is to make your children joint owners of any property you have as "joint tenants". Any property owned as joint tenants automatically pass to the surviving tenants if one dies - bypassing the will. However this may expose them to certain taxes.

I would speak with an estate lawyer about it. This area is very complex and convoluted and needs to be tailored to your specific circumstances.

Thanks, Sophea

The de facto test seems broad and subjective. I'm not sure what the parameters are within each of the circumstances eg how long you like with someone to qualify as de facto. I guess this is what the courts decide?

Your opinion regarding a memorandum seems like a sensible approach and could remove the subjectivity of what was provided and given after I shuffle off.

I will make some notes and ask my solicitor to write it up. Should I pass a copy on to the kids and / or pass to on to the executor?

 

[Sophea]

It's up to you whether you give a copy to your kids, it wouldn't do any harm - but definitely the executor - it should perhaps be attached to your will.