Maybe, maybe not.

 

 

Divorce has the effect of revoking a will in Western Australia, effective from the 9th February 2008. Prior to that time, a person might separate from their spouse, effect a matrimonial property settlement, obtain a divorce.

Having omitted to make a new will, their entire estate is bequeathed to their much despised ex-wife. To avoid this undesired outcome until such time as section 14A was enacted. The will maker to make a new will as soon as they separated from their spouse will rest upon the clear obligation.

What then, is the situation for wills where a de facto relationship has come to an end between the time of the making of the will and the will makers’ death?
 
It is noteworthy that the amendment to the Wills Act in 2007 enacting Section 14A refers only to marriages and not de facto relationships).
“(1) In this section Family Court of Australia means The Family Law act created the Family Court of Australia. Family Law Act means the Family Law Act 1975 of the Commonwealth.”
 
In section 14A of the Wills Act to the Family Court Act 1997, no reference was made.  Which, the Family Court Amendment Act 2002 made the amendments. That will give exclusive power to the Family Court of Western Australia to settle disputes between de facto partners.
 
It is submitted, a compelling argument (as a matter of statutory construction). With that, the omission of any reference to the ending of a de facto relationship in section 14A of the Wills Act meant such relationships to be covered. 
 
Particularly some five years after the amendment to the Family Court Act 1997, the amendment came into effect. Thus, giving the Family Court of Western Australia the jurisdiction to deal with de factos.
 
 Master Sanderson in Blyth v Wilken [2015]486 considered the matter recently. The facts — that the deceased died on the 28th August 2014 having made a will dated the 2nd December 2003. That leaving his entire estate “UPON TRUST for my de facto wife KATHRINE MARY MURRAY provided she survives me for twenty-eight days”.
 
Moreover , Ms. Murray did so survived him. On 21 December 2011, the difficulty was the de facto ended. In paragraph 7, Master Sanderson said: “Under s 14(2) of the Wills Act when a married couple is divorced any will then in existence is revoked”.
 
The section makes it plain revocation takes place upon the orders dissolving the marriage being issued. In other words, the involvement of the Family Court of Western Australia is a precursor to the will being revoked.
 
By agreement, with a de facto relationship, the parties are free to go their own way.  In fact , They may, under the appropriate legislation, resort to the Family Court if they can’t resolve disagreements to property or children.
 
But even if the Family Court is involved in those types of disputes. No time does the Family Court issue a decree which dissolves the relationship. Thus, a de facto partner entering a will when the relationship is sound continues to apply even when the relationship is dissolved’.
 
 Those comments would appear to support the proposition that the ending of a de facto relationship does not, of itself, revoke a will. However, the Master’s gift found to Ms. Murray was not effective: In my view to read the will in that way ignores the reality of the relationship.
 
The deceased bequeathed the property to Ms. Murray because she was his de facto wife. Once that ceased to be the case it seems to be the intended disposition should fall away.
 
With a gift to ‘my son John’, the position can be contrasted. It would not be altered if after the signing of the will the testator and his son became estranged. The fact that the phrase ‘my son John’ would still describe a particular person and a particular relationship.”
 
It is submitted that the reasoning is not compelling (even if the result is appropriate). What if the will had referred to the de facto only by name and not included the description “my de facto wife”?
 
Making a new will before the enactment of Section 14A requires a divorced will-maker who did not wish an ex-wife to benefit. So, separated de facto partner makes a new will to avoid this result if they desired.
 
What of the will-maker who may still wish his “ex” de facto to be able to receive his estate (perhaps those who would take on intestacy are, in the will makers eyes, less deserving)? The Blyth decision would suggest that the will-maker would need to prepare a new will.
 
 In addition ,to avoid intestacy, wills are generally construed– an adopted argument against the interpretation. The decision also raises the question of when does a de facto relationship end?
 
Moreover ,The basis of the Blyth’s decision considers the recent case of Chan v Waldemar Mazurkiewicz [2015] WASC 432. If the relationship has ended (albeit only a short time before the will maker’s death).
 
Regardless of whether in the Family Court or otherwise had reached any property settlement. Then (now ex) de facto,  would not be entitled in the estate.
.
 
On an intestacy, Nor would the ex de facto be entitled (since they would not have been in the relationship “immediately”. As the Administration, Section 15 required, Before the Deceased’s death ).
 
Neither would the ex de facto have any claim under the Family Provision Act (subject to the evidentiary issue that the relationship had ended.  The onus of establishing being on the person asserting the continued existence of the relationship –see Chan).
 
Above all, these may lead to the recommendation that, in the event of a de facto relationship is coming to an end:
 
1) The will-maker should immediately make a new will.
2)  The de facto partner prejudice should immediately commence being potentially being omitted from the will. This should lead to proceedings in the Family Court of Western Australia