TGB Partner Mal Byrne on a homosexual person's rights to provision from their partner's Will.
TGB Partner Mal Byrne on a homosexual person’s rights to provision from their partner’s Will.
In South Australia, The Inheritance (Family Provision) Act 1972 (SA) permits a limited class of people to seek provision under a Will where they have been left out of the Will or inadequately provided for. This can only be challenged after the testator (the person making the Will) has died.
Where a homosexual man or woman has a partner who has died and he or she has been left out of the partner’s Will, he or she has standing to challenge the Will under the Inheritance (Family Provision) Act 1972 if it can be established that he or she was the “domestic partner” of the deceased person at the date of the person’s death. Domestic partner is a legal term for de facto partners and includes same sex partners. However, the de facto partner must meet the definition of “domestic partner” under the Family Relationships Act 1975 (SA), which means that he or she must have either cohabited with the deceased for the last three years prior to their death or three out of the preceding four years prior to their death, or he or she must have had a child with the deceased (even if the child has died prior to the deceased).
However, while a domestic partner falls within the class of people who have standing to make a challenge to the Will, the standing alone does not guarantee success in this type of challenge. When assessing applications under the legislation, the courts will take several factors into account including the terms of the Will, the relationship of the deceased to the person challenging, the people who benefit under the Will and their relationship with the deceased, the financial circumstances of the person challenging and the beneficiaries and the size of the estate. Generally, spouses and domestic partners get priority over children. If a testator makes a Will and leaves everything to the children and nothing to his or her spouse or domestic partner, it’s likely that a court will vary the provisions under the Will.
Testators who consult lawyers when they make their Wills have the opportunity to seek advice about the risks of leaving close relatives in or out of their Will. The court is less likely to overturn a Will where the testator has made some provision for a close relative even if the relative gets less than other relatives of the same status. There is a good reason why testators when making a Will should want to make a Will that is unlikely to get challenged. Usually, the costs of an application is under The Inheritance (Family Provisions) Act of all sides are paid out of the estate. Court proceedings are expensive and the cost of litigation can dwindle the estate to such an extent that everybody loses and that there is less money available for distribution to both the beneficiaries under the Will and the person challenging the Will once the litigation is over.
In summary, if your same sex partner dies and leaves you out of the Will, you will have standing to challenge the Will if you meet the legal definition of “domestic partner”. Whether you will succeed depends on a number of factors, but if the estate is significant and your financial circumstances are poor, you should seek legal advice promptly on your chances of making a successful challenge.
For further assistance or advice with your legal issue contact your nearest TGB office.
On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.