‘My de facto partner didn’t update his will before he died, now I risk losing my home’

Sep 13, 2019
Correcting a mistake in a will isn't as simple as rubbing it out and starting again once the will's owner is dead - as one reader in a de facto partnership is discovering. Source: Getty

Q: My de facto partner of 12 years dropped dead four months ago. His will stated that I could live in the apartment until I died, but unfortunately he had the address of our previous apartment in the will, which has proved to be a legal problem. His wishes are quite clear.

Can the executors still carry out his wishes? I am 73 and was almost totally supported by him. I think his family are going to exploit the anomaly in the will to get the apartment.

A: That’s what lawyers call a problem. While the will is generally taken to mean what it says on the face of it, the courts can change it to reflect what the deceased really intended. Unfortunately, the terms of the will don’t help your argument, but you definitely need to see a lawyer as soon as possible to see what recourses you have to rectify the Will – a court can do in order to properly reflect what your de facto intended.

Inheritance issues around de facto relationships have been a big topic for Starts at 60 readers recently, with a number asking how the status of their relationship may impact their treatment in their partner’s will. The issue is complicated by the fact that de facto partnerships are a legal ‘twilight zone’, in that they can only be proved to exist through conduct. In Australia, if you are, as defined by the law, someone’s de facto on their death, and they haven’t provided for you in their will, you may be able to challenge their will.

However, it all comes down to whether you satisfy the applicable definition of de facto in terms of your conduct. Readers in de facto relationships concerned about the inheritance implications of their relationship may like to consider a family law financial agreement to add some clarity to their situation.


Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

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