Does your Will address who you sleep with?

There are many reasons why you need to have an up-to-date will and the "Boyfriend" or "Girlfriend Law" is just one of them.

2008 0

Having a will gives some people piece of mind, and others the creeps, but if you’ve had multiple partners and haven’t updated it for a long time, then here’s one real life story you’ve gotta read.

Susan hadn’t had an easy life. She married and divorced early, which left her with two young kids. She made ends meet by working as a bookkeeper and admin manager most of her life.

Sadly, her daughter committed suicide as a teenager and Susan was left raising a highly emotional teenage boy.

Susan’s on again off again boyfriend Phil seemed okay in that he was a great help around the house, taking care of the yard maintenance and doing various “man jobs”.

Phil was receiving a single person’s Newstart Allowance and listed his address as his mother’s home several kilometres away.

Despite her difficulties, Susan had paid the house off, built up a reasonable amount in super and had been looking forward to easing into retirement in a few years when she turned age pension age.

Susan was introduced to me having been diagnosed with stage four lung cancer caused by smoking her entire life.

She had no will, no powers of attorney and wanted to “get my affairs in order while I can…”.

A new will was prepared creating a trust for her teenage grandson, and an instruction to the executors to retain the house in trust for six years so that her son and grandson had somewhere to live.

Everything was to be split equally between the son and grandson so a binding death nomination was established on Susan’s super directing payment to her estate.

The problem: She passed shortly after these documents were put in place.

Then the hassles began, not for Susan but for her executor – her sister Irene.

Susan had been living with Phil on-and-off for several years and he felt he was entitled to a share of the house from the estate “…for looking after it, y’know I put a lot of effort in…”.

In all states of Australia spouses have a right to challenge the will if they feel they have been unfairly provided for.

“This is an example of The Girlfriend Law operating as “the Boyfriend Law”.

But the plot thickens, property searches showed that Susan did not in fact own the house, it was still in her ex husband’s name 25 years after their divorce.

Susan had not noticed his name on the Valuer General statement and the local council had accepted her at face value and changed the rates notices.

The bank had changed the names on mortgage paperwork but not bothered to tell her that she was not the owner of the property.

Susan and her ex-husband had never finalised the divorce paperwork and transferred the property to Susan’s name.

The law firm that assisted during the divorce was quite derelict in their duties, had not followed the issue up and in any event were no longer in business.

Nonetheless pointing the finger would not solve the problems confronting the executor Irene.

The Solution: Despite Phil possibly having the right to make a Family Provision Claim against the estate it was pointed out that pursuit of his claim might result in Centrelink fraud charges being brought against him.

Ultimately Phil weighed up the possible windfall from the estate against criminal fraud charges and he dropped his claim.

It was extremely fortuitous that the ex-husband was able to be coerced into behaving with some ethics in this case as it was not his initial intent.  In many situations like this greed becomes a dominant motive with a difficult settlement and legal fees being the normal outcome.

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