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Is a Will proof of a relationship?


Making sure you and your partner are protected from unexpected events is a vital part of planning for your future together. In addition to buying joint assets or opening up a bank account together, preparing a Will and other estate planning documents is integral to ensure your Estate is distributed according to your wishes and to secure your other-half's future.

Popstar Jewel wrote in her “Who Will Save Your Soul” 90s hit:

“You know you love him if you put him in your Will.”

This lyric hits home for many people because including a significant other in your Will is big sign of commitment. It is one of the many milestones a couple goes through during their relationship.

However, it is also important to remember to update your Will in the event your relationship status changes. Despite making a commitment to this person, it is important to consider how much you want them to receive in the event that you die.

This blog post focuses on a case Appeal of Radecki & Fairbairn [2020] Fam CAFC 307 and how de facto relationships are viewed in the eyes of the Court. The relevant facts are as follows:

Fairbairn & Radecki - background

  • Ms Fairbairn had created a Will that stated Mr Radecki could retain to live in her townhouse for 6 months after she passed away.

  • Ms Fairbairn had been diagnosed with dementia and could no longer make cognitive decisions.

  • Ms Fairbairn’s children have appointed a trustee to commence legal proceedings against Mr Radecki in order to dispute any ownership claim that Mr Radecki was entitled to, so the townhouse could be sold to pay for Ms Fairbairn health care.

  • Mr Radecki put forth a suggestion to cover Ms Fairbairn health care costs with her superannuation.

  • Mr Radecki and the Mrs Fairbairn have multiple standing legal agreements to keep their ownership of property separate.

  • Ms Fairbairn had tried to modify her Will to allow Mr Radecki a life estate (to have ownership of the townhouse as long as he lived, but then upon death it will be granted back to a person of Mrs Fairbairn choosing).

  • The original Judge ruled that the relationship between the couple had broken down and therefore Mr Radecki had lost all legal power over Ms Fairbairn estate (deviating from her wishes from the original Will).


Radecki & Fairnairn - The de facto relationship

The core part of reevaluating this case was to figure out whether Mr Radecki and Ms Fairnairn’s relationship had broken down or not. The Appeal Judge did this based on some vital pieces of evidence. The first was that in the original judgement, the Trustee for Ms Fairbairn had put forth that Mr Radecki had not put any contribution towards Ms Fairbairn’s healthcare and in doing so that it was a neglectful act towards her and their relationship. However, in the Appeal it was discovered that the Mr Radecki had in fact made contributions over the last year, prior to the case.

Secondly, an original suggestion on Mr Radecki’s behalf to dedicate some of Ms Fairnairn’s superannuation towards her health care accommodation costs, was rejected by Ms Fairnairn’s Trustee. The Appeal Judge did not understand the merit behind this decision as he found it was a clear evident action that showed a continuing de facto relationship. As it showed there was still a relevant bond of care between the parties.

Thirdly, the last valid Will created by Ms Fairnairn to allow Mr Radecki to live in the property for 6 months after her death was seen as an intention to not allow Mr Radecki to remain in the property. The Appeal Judge saw this with a different perspective, that if the relationship had broken down then. Ms Fairnairn wouldn’t want Mr Radecki to live in the property at all. The act of having that in her Will showed there was indeed an intention of a continuing de facto relationship.

The Closing Verdict

The Appeal Judge came to the verdict that the evidence submitted against Mr Radecki in trying to establish a breakdown in the relationship were of some value. However, they could only substantially uphold a sign of disagreements and disputes between the couple, that there wasn’t enough merit to show that there had been a relationship breakdown. The Appeal was granted and the original decision overruled.

This case presents how a de facto relationship is seen by the court and how important it is to have a Will done properly and completely inclusive of your wishes. The Will should be clear as not to leave any room for error or misinterpretation.

Wills & Estates offers no cost, no obligation initial appointments so that you can find out where you stand and exactly how much it will cost you to get your Will and/or Estate Plan sorted. We offer fixed fees and payment plans - your wishes, your way.

Don’t wait until it’s too late, contact us today!

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Email: wills@willsnestates.com.au

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