Defacto Will Disputes

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De Facto Will Dispute

This page provides details regarding the de facto relationships and will disputes
De Facto Will Disputes
De Facto Will DisputesFactors in De Facto Relationships
De Facto Will Disputes
De Facto and Wills
  • Section 57(1)(b) of the Succession Act deals with De Facto Relationships that relate to will disputes.
  • Pursuant to section 21C Acts Interpretation Act a person is in a de facto relationship with another person if:
    • They have a relationship as a couple living together, and
    • They are not married to one another or related by family.
  • A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else
  • A person in a de facto relationship is not exempt from claiming under their partners will. If the de facto relationship is able to be proven in law then an individual may be entitled to claim from the deceased’s estate.
Will Disputes

A will dispute is essentially an individual challenging a valid will under certain situations, the following grounds are reasons as to why a party may challenge a will:

  • The person lacked sufficient mental capacity or understanding to draw the will up;
  • The family members were not made aware of the provisions of the will as the proper actions were not taken to inform them;
  • There was unconscionable conduct that influenced the will maker by another person;
  • The will was not properly executed or there was evidence of tampering; and
  • There was another will that was drawn up by the deceased.

Will disputes are complex matters due to the inherit individualistic nature of each matter which is why it is now even more important to retain a lawyer with experience in the field. State Lawyers is an established firm in the legal industry which has a great reputation in resolving will disputes.

New Law - Post 1 March 2009
  • De Facto Relationships have the same rights as a married couple under the Family Law Act 1975 in relation to the distribution of property.
  • Same-sex relationships are included in the de facto couple definition and as a result are entitled to the same rights to property.
  • If there is a child in the de facto relationships, then the Child Support (Assessment) Act also applies.
  • New laws in relation to the division of property for de facto relationships commenced on 1 March 2009.
  • The laws relate to de facto relationships that broke down on or after 1 March 2009 in NSW.
  • If the relationships broke down before the above date, then both individuals can apply to the Family Courts for a property settlement. This occurs if both parties obtain independent legal advice and the agreement is in writing and signed by both parties.
  • If you are in de facto relationship before 1 March 2009 and you separate after that date then you are entitled to claim and be eligible for a Family Provision Order.
Factors in De Facto Relationships
Factors

If a De Facto relationship is proven the Court will take into account the following factors:

  • How long you have been together
  • The nature and extent of your common residence and whether there is a sexual relationship between the parties
  • Your financial involvement may also be considered
  • The ownership of your property
  • The degree of mutual commitment to a shared life
  • Whether the relationship is registered under a State law
  • The care and support of children
  • The reputation and public aspects of your relationship
Separating from a Defacto Relationship

Since 2009, couples with de facto status have had similar rights as traditional married couples. Therefore, the courts typically have applied the same rules in judgement for de facto couples as for any traditional separation or divorce e.g. Any disputes over your children or assets will be treated by law in the same way.

Under the Family Law Act, a couple is in a de facto relationship when:

  • they are not married to each other
  • not related by family
  • and have a relationship whilst living together in a traditional domestic sense

Under the Family Law Act, a de facto couple:

  • does not require opposing genders to exist
  • and can exist even if one of the parties is legally married to someone else or in another con-current de facto relationship.
Am I in a Defacto relationship?

To determine if you are in a Defacto relationship a court will consider;

  • The time spent in the relationship
  • If you are living in a common residence
  • If there a sexual relationship between the parties
  • If any property is jointly owned and the financial involvement of the parties
  • The degree of mutual commitment to a shared life and how you are viewed in the public eye/community
  • Is the relationship is registered under a State law
  • The care and support of children
Rules when applying for property settlement

When it comes to applying for property settlement and/or spousal maintenance orders, the Family Law Act only applies to you as a partner in a de facto relationship if you can show:

  • the relationship has lasted at least 2 years in total (on and off periods may also be considered), or
  • there is a child of both parties within the relationship
  • significant financial or non-financial contributions has been present within the relationship and serious injustice would result if an order wasn’t made, or
  • your de facto relationship has been registered.

Helping you to resolve de facto will disputes, Sydney

A de facto relationship is a complex one from a legal point of view. It can exist even if one of the people in the relationship is in a registered relationship (such as a marriage) to someone else, for example. As a result of that, there are times where the complexity can lead to de facto will disputes. Sydney residents can rely on State Lawyers to help to resolve these disputes quickly and efficiently.
Legally a person who is in a de facto relationship is able to claim under their partner’s will. As long as the de facto relationship can be proven by law, then the individual will be entitled to some of the deceased’s estate. Establishing that relationship is a core component of the bulk of de facto will disputes. Sydney locals have been coming to State Lawyers for years for our expertise in establishing, and then proving a de facto relationship.

What you need to know

There are a number of things you should know first before proceeding with a de facto will dispute. Sydney locals come to us at State Lawyers to get the guidance that they need before proceeding with such a dispute:

– Same sex relationships are included in the de facto couple definition, so are entitled to the same rights as those in heterosexual relationships.

– If the de facto relationship includes a child, then the Child Support (Assessment) Act will also apply as part of the dispute resolution.

-There are new laws that affect the division of property and de facto relationships that broke down on or after 1 March 2009 that will need to be considered, as opposed to those that occurred before that date.
Once you contact State Lawyers, we will take the time to sit down with you and understand the full details of your de facto relationship, as well as the nature of your dispute. From there we will provide expert guidance, informed by your rights under the law, for your best next course of action.
We know that dispute resolution through the law can be a painful process, but through State Lawyers, we will ensure that you gain a fair result from your de facto will dispute in Sydney