WA De Facto Living in Estate in Fee Simple - Only Upon Remarriage?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Adora

Member
26 October 2016
3
0
1
This query is in regards to a remarriage clause in an estate in fee simple. How could a de facto relationship factor into this ? One would assume that a widower living in a de facto relationship is against the spirit of the will.

A few months after the death of her husband, a widow started a relationship with another man. They started living together within 6 months of the death of her husband.

The house they, widow and partner, are living in is an estate in fee simple. The widow has a half share with the remainder to be divided, as tenants in common in equal shares, amongst the deceased's children upon her death or remarriage.

Obviously a true de facto relationship has to be established but, if so, is there a likelihood that the courts would consider the clause meet?
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,283
751
2,894
Sydney
Is this a homework question, or real life?
 

AdValorem

Well-Known Member
20 August 2015
57
8
224
Perth
Hi Adora

Conditions in wills relating to restraint on marriage are void for being contrary to public policy. However, words such as ' as long as she remains my widow' are words of limitation and the gift is not void.

The question is:

What was the intention of the will maker? Was the intention that the widow may live in the property for as long as she remains unmarried and her interest terminates on remarriage?

Or was the intention that the widow may live in the property for as long as she remains unmarried and does not enter a de facto relationship?
 

Adora

Member
26 October 2016
3
0
1
Thanks for the reply.

One would assume he did not wish his widow to live in their marital home with another. Otherwise why bother placing a clause at all. However, the will simply says 'upon remarriage'?

Thanks for your time.