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Have you separated from your partner? Should you update your Will?

In Western Australia the Wills Act provides that where a person marries or divorces, any previous Will not made in contemplation of that marriage or divorce is void. 

However, separation from a long term partner does not automatically revoke your Will in the same way.  As such it is important to review your Will when you separate from your long term de facto partner.

It is important to note that just because you may have had property orders made and a division of your assets, your Will is not automatically revoked.  Although you may consider that person no longer part of your life and no longer entitled to any future assets of yours, depending upon the construction of your Will your ex-de facto partner may still be entitled to inherit from your estate if there is provision for them made in your Will.  The laws in relation to family law property settlement and inheritance under a Will are not related.  As such if it is no longer your intention for an ex-de facto partner to inherit from your estate you need to update your Will accordingly.

A relevant West Australian case, Blyth v Wilken [2015] WASC 486 in this area, a decision of Master Sanderson considered the way an individual was referred to in the Will as being a relevant factor as to whether a person should inherit.  In this case the Will referred to a “de facto wife” of the deceased receiving a portion of his estate.  At the date of death of the deceased the individual listed as his de facto wife was in fact no longer his de facto wife.  As such the court was asked to make a decision as to whether the individual referred to was entitled to inherit from the deceased’s estate or whether that individual was no longer entitled because her being a de facto wife was a condition of her inheritant right to inherit.  Master Sanderson determined that being a de facto wife was a precondition to her inheriting and as such the Will should be read as though that individual was no longer included in the Will.

Whilst this may bring comfort for some that by including the word de facto or partner before an individual’s name they may not have to update their Will if they separate from that person.  We would advise caution with that approach.  This principle should be applied with caution as this decision of Master Sanderson is not binding on the Judges of the Supreme Court of Western Australia or other Courts around Australia and it has not been tested further.

Despite this decision it is still important to consider the way your Will is worded and ensure that it is up to date and reflects your testamentary intentions at all times.  The words used in the drafting of the Will are extremely important and were a determining factor on the Master’s decision.

Additionally, the costs to the estate to request clarifications of this nature are often extremely expensive especially if disputed by another party who would suffer financial detriment if not provided for.

Therefore it is our recommendation that if you separate from your de facto partner you should review your Will to consider whether it needs to be updated to exclude that person.

Please do not hesitate to contact us to make a time to have your Will reviewed.