Part 8 of the Property (Relationships) Act ('the Act') deals with the division of property where a marriage, civil union or de facto relationship ends (after 1. There are specific provisions in part 8 of the PRA dealing with the division of relationship property on death. In essence, the surviving spouse. The Property (Relationships) Act radically reformed the property rights of married and de facto couples whose relationships end on the death of one of the .
A lawyer must explain to the surviving spouse or de facto partner fully the effects and implications of the notice of election so that they can weigh up the advantages and disadvantages of each option. And in order to do that, the lawyer needs to be aware of all the assets of the deceased and the survivor and the classification of such assets as separate or relationship property.
The lawyer needs to sign a certificate confirming that they have given the survivor advice on their election. Once the surviving partner has made the decision, it is irrevocable and can only be set aside on application to the Court.
Relationship property after death
The Court may set aside the election if the estate has not been finally distributed, and if it would be unjust to enforce the election or if one of the following circumstances apply: The election was not freely made; The surviving spouse or partner did not fully understand the effect and implications of the election; Since making the election the surviving spouse or partner has become aware of information relevant to the election made; or Since making the election, a person has made an application under the Law Reform Testamentary Promises Act or the Family Protection Act in respect of the Estate of their deceased spouse or partner.
In conclusion, a surviving spouse or partner will be able to override the provisions of their spouse's or partner's Will by electing to make a relationship property claim.
This could have implications for other relatives, particularly children of the deceased, who the testator expected to provide for financially in their Will. In addition, the drafting of Wills is no longer a straightforward process.Kya Wife Apne Husband Ki Death Ke Baad Usko Nahi Dekh Sakti Hai By Adv. Faiz Syed
Lawyers need to consider more complex asset planning structures and possibly even a relationship property agreement when preparing Wills for couples.
Option A Option A is the choice to apply for a division of the relationship property under the Act.
Relationship property after death
Generally speaking, choosing Option A means the equal sharing regime applies and that your lawful entitlements take priority over the terms of the Will and you do not receive what has been provided for you under the terms of the Will, instead you receive your share of the relationship property.
Option B is the default position if the survivor does not choose Option A within the time limit as detailed below, and in the manner prescribed. How is the Option Chosen and Notified? Choosing an option is a formal process that must be made by completing and signing a written notice.
Relationship Property on Death - Jacinta Ruru - Google Книги
The notice must include a certificate signed by a lawyer certifying that the lawyer has explained the effect and implications of the option chosen. It also needs to be lodged with the administrator of the estate. It is not a decision that is to be made lightly, once made, the decision is irrevocable unless a Court sets it aside.
It is therefore important to obtain detailed advice about each option and the implications of the choice to be made. There are also important time limits that apply to the election of an option.