Social Change brings Legal Change to Your Will

The law is slow to change. Legislators often wait for changes in society to become established and accepted as “the norm” before making changes to legislation. Over the last 50-70 years, there has been an increasing trend towards de facto relationships in Australian society. According to the 2016 census, 1,751,731 people in Australia were in “de facto marriages”, representing 10.4% of the population. This figure was up from 9.5% in 2011 and 7% in 2006.

De facto relationships 

As a consequence of this social change, there has been a need to update the Succession Act 1981 (Qld). While the Act previously provided for the effect of divorce on a person’s Will, it did not do the same for the breakdown of a de facto relationship. The legislation has now been amended to remedy this inconsistency via the addition of section 15B, which provides that the ending of a testator's [will-maker's] de facto relationship [automatically] revokes:

  1. a disposition to the testator's former de facto partner made by a Will in existence when the relationship ends;
  2. an appointment, made by the will, of the former de facto partner as an executor, trustee, advisory trustee or guardian; and
  3. any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator's former de facto partner.

However, the ending of a testator's de facto relationship does not revoke:

  1. the appointment of the testator's former de facto partner as trustee of property left by the will on trust for beneficiaries that include the former de facto partner's children; or
  2. the grant of a power of appointment exercisable by the testator's former de facto partner only in favour of children of whom both the testator and the former de facto partner are parents. 

In that section, former de facto partner, in relation to a testator, means the person who was the de facto partner of the testator immediately before the ending of the testator's de facto relationship.

Civil partnership 

There is an equivalent section dealing with the termination of a testator's civil partnership or the finding that a testator's civil partnership is void.

Stepchildren 

The definition of stepchild in section 40A has also been updated to incorporate de facto relationships and civil partnerships. Subsection (2) now provides that the relationship of stepchild and step-parent also stops on the termination of the civil partnership or the ending of the de facto relationship between the deceased person and the step-parent.

However, the relationship of stepchild and step-parent does not stop merely because:

  1. The stepchild’s parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died; or
  2. The deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild's parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.

Conclusion 

Further amendments to the Succession Act and other pieces of legislation will, without doubt, be required in the coming years. However, given the trend seen in recent history, it is likely that there will continue to be a lag in the necessary changes being effected.