It is well established that in Queensland, marriage and divorce change the operation of a Will.

Marriage invalidates a Will

Pursuant to Section 14 of the Succession Act 1981 (Qld) (“the Act”), the act of marriage invalidates any and all previous Wills (an exception being a Will made in contemplation of a marriage).

Divorce revokes dispositions to a former spouse

Section 15 of the Act provides that a divorce revokes dispositions to a former spouse. Separation in itself has no legal effect on the operation of a Will.

What about ending a de facto relationship?

Until recently, the cessation of a de facto relationship similarly had no legal effect on the operation of a Will.

Blyth v Wilken [2015] WASC 486

In the recent Western Australian case, Blyth v Wilken, Wayne Scott died on 28 August 2014, having made a Will dated 2 December 2003 wherein he gave the majority of his estate to “my de facto wife KATHRINE MARY MURRAY”. Mr Scott and Ms Murray had ended their de facto relationship permanently on 21 December 2011. Mr Scott had not changed his Will.

The issue for determination by the Supreme Court of Western Australia was whether the gift in Mr Scott’s Will was conditional on Ms Murray being Mr Scott’s de facto wife at the date of his death.

The Court held that Ms Murray was not entitled to receive the gift under the Will.

Master Sanderson pronounced in his Judgment that “the deceased had 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.” Such position and reasoning seems to suggest that if Mr Scott had not referred to Ms Murray in his Will as being his ‘de facto wife’, then the cessation of their de facto relationship would not have affected her interest in his estate.

Under the view held prior to the decision of Blyth v Wilken, the cessation of their de facto relationship would have had no legal effect on the operation of Mr Scott’s Will and accordingly, Ms Murray would have been entitled to receive the gift under the Will.

Implications of the decision

The decision of Blyth v Wilken represents a significant change in how the cessation of a de facto relationship affects the operation of a Will and has the ability to have serious implications for clients. The following recommendations are made to safeguard and protect clients’ interests:

When preparing a Will for a client whom is in a de facto relationship, take particular care in drafting provisions gifting, or otherwise referencing, their de facto spouse. Ask the client what their intentions are, specifically whether the provision referencing their de facto spouse is conditional on the relationship existing at the date of their death. The Will should be drafted so as the client’s intentions are clear and certain.

Advise clients that they ought to review their estate planning arrangements immediately following the cessation of their de facto relationship, either to preserve gifts to their former de facto spouse, or to remove them. Clients should be informed that whilst it is now possible that their separation will mean that a reference to their former de facto spouse will be omitted from their Will, the law in this area is unsettled, and therefore uncertain. Reviewing and updating their Will following the cessation of their de facto relationship remains the safest way to ensure that their wishes are met upon death.

When acting on behalf of the de facto spouse that is prejudiced by potentially being omitted from their de facto spouse’s Will, advise that they ought to consult a Family Law Accredited Specialist immediately following the cessation of their de facto relationship, to obtain advice as to their entitlements pursuant to the Family Law Act 1975 (Cth).

Be cautious in administering estates where the Will gifts, or otherwise references, a person whom is the former de facto spouse of the deceased. The decision of Blyth v Wilken may affect the operation of the Will.