Can You Exclude Your De Facto Partner from Your Will in Victoria?
When creating a will, you may wish to ensure that your assets are distributed according to your specific wishes. However, if you have a de facto partner and want to exclude them from inheriting, it is crucial to understand the legal implications. Under Victorian law, a de facto partner is an "eligible person" who may contest a will if they believe they have not been adequately provided for. This is governed by Part IV of the Administration and Probate Act 1958 (Vic).
Can a De Facto Partner Contest Your Will?
Yes. If your de facto partner was financially dependent on you or can demonstrate that they had a genuine domestic relationship with you, they may be able to challenge the will. Factors the court will consider include:
The duration of the relationship
The nature of financial arrangements between you and your partner
Whether your de facto partner contributed to your assets or well-being
Whether excluding them leaves them in financial hardship
If a challenge is successful, the court may award them a portion of your estate, even if your will explicitly states they should receive nothing.
Steps to Reduce the Risk of a Successful Challenge
If you are determined to exclude your de facto partner from your will, consider taking the following steps:
Clearly Document Your Reasons – Provide a written explanation outlining why you do not want them to inherit. This can be included in your will or in a separate document, such as a statutory declaration or letter of wishes.
Consider Your Children’s Inheritance – If you have children, clearly state that you want them to be the primary beneficiaries of your estate. This can strengthen your case against a challenge.
Leave a Small Gift or Provision – Courts are more likely to intervene when a partner is completely excluded. Leaving a small gift or sum of money can sometimes reduce the likelihood of a successful claim.
Ensure Your Will Is Legally Sound – A properly drafted will, with legal advice, can help prevent challenges and ensure your wishes are respected.
Use Trusts or Other Legal Structures – Some people explore trusts or joint ownership structures to limit assets that may be contested. However, legal advice is crucial before taking this approach.