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There are many legal issues that can arise following the death of a partner. It is not possible to cover all the possibilities in a publication like this. The following information is an outline of some of the main issues that may arise following the death of a partner.
Wills
A Will is one of the most important documents you will ever sign. A badly written Will often leads to delays and disputes. The most important reason for making a Will is to make sure that, after your death, your property is distributed in the way you would have wished it to be.
If you do not leave a Will, there are laws that cover how your property will be distributed.
There are legal requirements for making a Will. If these requirements are not met your Will may not be valid. Where possible it is best to obtain the services of a solicitor rather than drafting your own Will.
Some of the issues you will need to consider are
- Who will be the executor? The executor’s role is to make sure your wishes are carried out. They will list and value your assets, pay debts and make sure your estate is distributed to the beneficiaries according to the terms of your Will.
- Property. Your Will should deal with all your property. This may include real estate, money, shares, superannuation and personal property. Anything you do not cover in your Will is divided among your relatives according to law.
- If you have children under 18 you may wish to appoint someone to be their guardian after your death. Not all such appointments are effective. Get legal advice.
If there is a Will
When a person dies and leaves a Will, the executor named in the will must apply to Supreme Court for a grant of probate. A grant of probate is a decision by the Probate Division of the Supreme Court that the Will is properly made and was intended by the testator to be their last Will and Testament. The application is made on a standard form ("Common Form"), and this is available from the Probate Division of the Supreme Court.
Who has the right to see a Will
Once there has been a grant of probate you can get a copy of the Will from the probate registry at the Supreme Court.
If there has not been a grant of probate or the person who has the Will is refusing to let you see it, you should seek legal advice.
If there isn’t a Will.
When a person dies without leaving a Will they are said to have died intestate.
If a person dies intestate the Administration Act 1903 (WA) sets out how their assets will be divided. Following changes to Western Australian law de facto partners of any sex now have inheritance rights under the Administration Act.
De facto partners wishing to claim under the Administration Act 1903 and the Inheritance (Family and Dependants Provision) Act 1972 will need to establish that their relationship was a de facto relationship. (see the Relationships section).
A person who has lived as a de facto partner with the deceased for at least two years immediately before the death is now entitled to a share in the estate in certain circumstances. This may be the case even if there is a husband or wife or possibly another de facto who is also entitled to a share.
If your partner dies intestate, you should seek legal advice about your rights.
A person who has lived as a de facto partner with the deceased for less than two years may have a claim under the Inheritance (Family and Dependants Provision ) Act 1972. See below.
Funeral Arrangements
The executor of a Will has the right to make funeral arrangements. If you have the right to arrange a funeral then you can also decide where the person is buried.
You can specify in your Will what sort of funeral you want, but this is not legally binding. More importantly, it will have no practical effect if the funeral is held before the Will is read. Make sure your executor knows what funeral details you have included in your Will.
Property In Joint Names
If you own property together as ‘joint tenants’ (see Property section for a definition) the surviving person automatically inherits whether or not there is a Will.
If you own property together as ‘tenants in common’ (see Property section for a definition) the deceased can leave their share of the property to anyone in their will
Shared home owned wholly by the deceased.
Following the death of your partner you may wish to remain in the home that you shared.
If the home was your ordinary place of residence and you are entitled to a share of the estate, you may have the right to acquire your deceased partner’s interest in the shared home. Your share in the estate may be reduced by the value of the home or you may have to pay money to the estate if there is a difference.
You must take certain legal steps before 12 months from the date of the first grant of administration. (Extensions may be granted in some circumstances).
De facto partners in this situation should get legal advice.
Children
The legal position of any children may be complicated if their parents were not married and one of the parents dies. In some cases children may be required to prove their relationship to the Probate Office. Get legal advice.
Challenging A Will Or Intestacy
The Supreme Court can change the way a Will or the Administration Act distributes property if it decides that your needs are not properly looked after. This power comes from the Inheritance (Family and Dependants Provision ) Act 1972.
The Act lists who can make a claim. As a de facto partner you can make an application if;
- you were living as the de facto partner of the deceased person immediately before the death; or
- you were receiving or entitled to receive maintenance from the deceased as a former de facto of the deceased as a result of a court order, agreement or otherwise.
- The Court will look at whether the Will or Administration Act provide adequately for your;
• proper maintenance
• support
• education, or
• advancement in life.
The Court will consider a number of factors including;
- how any changes will affect other people entitled to a share in the estate
- the sort of property involved and it’s value
- the ages of surviving dependants
- the way you acted towards the deceased and your relationship in general.
You must apply to the Supreme Court within 6 months of;
- the grant of probate of the Will; or
- the grant of Letters of Administration
In some circumstances the time for making an application may be extended.
You will require legal assistance to challenge a Will in the Supreme Court.
A family member of the deceased can challenge a Will or Administration Act provision. This may affect your rights. If an application is made to the Court, a summons and a copy of the documents filed will usually be given to each person whose rights will be affected under the Will or Administration Act. If you receive a summons you should get legal advice about your rights.
Death Compensation.
In some situations it may be possible to obtain compensation following the death of a partner. Some of the Western Australian Acts that allow for compensation following the death of a de facto partner of any sex are discussed below. If your partner dies and you believe you have a right to compensation you should seek legal advice.
- The Fatal Accidents Act 1959 (WA): Where a person’s death is caused by negligence or fault, family members may, in certain circumstances, be entitled to sue for the death of that person. A de facto partner of the deceased who was living with the deceased for at least two years immediately before the death is entitled to claim under this Act. Claims must be made within 12 months of death. (Extensions may be granted in some circumstances).
- The Worker’s Compensation and Rehabilitation Act 1981 (WA): When a worker dies as a result of an injury or illness related to their work, surviving dependants including de facto partners may have a claim under the Act.
- The Criminal Injuries Compensation Act 1985 (WA): Close relatives of someone who dies as a result of an offence may have a claim for loss. A de facto partner who was living with the deceased in a relationship for at least two years immediately before the death is a close relative under the Act.
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