A couple in a de facto relationship signed a contracting out agreement.

When the man died, there was nothing in his Will to provide for his de facto spouse and he left the entirety of his estate to his children from previous relationships. However, the former de facto partner continued to live in the family home with her own children from a previous marriage.

The partner bought a claim to the Family Court seeking to set aside the contracting out agreement and obtain further provision from the man’s estate.

It was decided by the Court that a breach of his moral duty to her had occurred, and that she should be awarded some provision from the estate because she was financially disadvantaged otherwise.

In this case the de facto partner was initially awarded a third of the estate. However this was reduced on an appeal by the deceased’s son because of the existence of the contracting out agreement, which he successfully argued should be upheld and regarded as the joint intention of the parties to it.

Where there is a breach of moral duty, the claimant is entitled to maintenance and support under the Will, but no more than is necessary to remedy the deceased’s failings to provide.

This principle applies to claims by de facto partners, and their claims are also considered to be paramount if there are competing claims by the partner and children of the present or previous relationships.

It is important to take legal advice on potential claims early when putting a Will in place.

 

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Nicky Wise