Does the ending of a De Facto Relationship Revoke a will

In Western Australia, effective from the 9th February 2008, divorce has the effect of revoking a will.

Prior to that time, a person might separate from their spouse, effect a matrimonial property settlement, obtain a divorce and (having omitted to make a new will) find that 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 clear obligation rested upon the will maker to make a new will as soon as they separated from their spouse.

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 Court of Australia created by the Family Law Act;


Family Law Act 

means the Family Law Act 1975 of the Commonwealth.”


No reference is made in section 14A of the Wills Act to the Family Court Act 1997, which, since the amendments made by the Family Court Amendment Act 2002 gives exclusive power to the Family Court of Western Australia to settle disputes between de facto partners.  There is, it is submitted, a compelling argument (as a matter of statutory construction) that the omission of any reference to the ending of a de facto relationship in section 14A of the Wills Act, meant that parliament did not intend such relationships to be covered, particularly since the amendment came into effect some five years after the amendment to the Family Court Act 1997 that gave the Family Court of Western Australia the jurisdiction to deal with de facto relationships.


The matter was considered by Master Sanderson in Blyth v Wilken [2015] 486

The facts were that the deceased died on the 28th August 2014 having made a will dated the 2nd December 2003 leaving his entire estate “UPON TRUST for my de facto wife KATHRINE MARY MURRAY absolutely provided she survives me for a period of twenty-eight (28) days”.

Ms Murray did so survive him.  The difficulty was that the de facto relationship had ended on 21 December 2011.

At paragraph 7, Master Sanderson said:

“Pursuant to 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. With a de facto relationship the parties are free to go their own way by agreement. They may, under the appropriate legislation, resort to the Family Court if they cannot resolve their differences with respect to property or children. But even if the Family Court is involved in those types of disputes at no time does the Family Court issue a decree which dissolves the relationship. Thus a will entered into by a de facto partner when the relationship is sound continues to apply even when the relationship is dissolved.’ (underlining added for emphasis).


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 found that the gift to Ms Murray was not effective:


9 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 me the intended disposition should fall away. The position can be contrasted with a gift to ‘my son John’. If after the signing of the will the testator and his son became estranged it would not alter 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 may have been appropriate in the circumstances).  What if the will had referred to the de facto only by name and not included the description “my de facto wife”?


Just as a divorced will maker who did not wish an ex-wife to benefit was required to make a new will before the enactment of Section 14A, so to could a separated de facto partner make a new will to avoid this result if they so desired.


What of the will maker who may still wish his “ex” de facto to be able to receive his estate (perhaps because those who would take on an 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 confirming their intentions.

Another argument against the interpretation that was adopted is that wills are generally construed so as to avoid intestacy.

The decision also raises the interesting question of when does a de facto relationship end?  As to that issue, consider 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) then, on the basis of the Blyth decision, the (now ex) de facto would not be entitled in the estate (regardless of whether any property settlement had been reached in the Family Court or otherwise).  Nor would the ex de facto be entitled on an intestacy (since they would not have been in the relationship “immediately” before the Deceased’s death as required by Section 15 of the Administration Act.)  Neither would the ex de facto have any claim under the Family Provision Act (again subject to the evidentiary issue that the de facto relationship had in fact ended – the onus of establishing being on the person asserting the continued existence of the relationship –see Chan).

These circumstances lead to the recommendation that, in the event of a de facto relationship coming to an end:

  1. The will maker should immediately make a new will;

The de facto partner prejudiced by potentially being omitted from the will should immediately commence proceedings in the Family Court of Western Australia for property orders to safeguard against the possibility of the will maker dying before any property settlement is reached.  Such proceedings could then be maintained against the Deceased’s estate and avoid the uncertainties of a Family Provision Act claim.