Q: I am 62 years old and have been retired since age 60 receiving a decent superannuation pension. My de facto is 56, and he is still working full time. He moved in with me about nine years ago. Ashamedly neither of us has a will. My de facto moved in with me bringing with him very little after a brutal divorce case saw his ex-wife take his children, most of the value of their house and an enormous amount of money which represented a percentage of his superannuation which of course couldn’t be accessed. My concern is that I want to protect my assets (particularly my house) to leave to my children.
I realise that the very fact that he lives with me now entitles him to a percentage of the house, and I want him to have what he would be entitled to, but I would like what is mine to go to my children. If I die first and everything is left to him, it is highly likely he will leave everything to his own children. I’m sure this sort of thing is not new – would a lawyer be able to help me craft a will addressing these issues?
A: The crucial point here is that you must keep control of your assets. You are absolutely correct in thinking that if you give all your estate to your de facto partner he may in turn prefer his children over yours. This would be quite legal. Your children may bring a claim to try to rectify the situation but this scenario is best avoided altogether.
You should leave your estate directly to your children through your Will. If you wish to make some provision for your de facto (for example that he may continue to reside in the house) that is your choice but if not he will have no direct claims on your estate as of right.
If your de facto is aggrieved by your actions he may apply to the court under Family Provision legislation for your Will to be adjusted and he may or may not be successful depending upon all the relevant circumstances at the time. It is really important that you take full and proper advice from a reputable estate planning lawyer who will be able to make a sound Will and offer further advice.
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