Marriage and divorce change the operation of Wills, but
until a decision of the Supreme Court of Western Australia in
Blyth v Wilken  WASC 486 in December 2015, ceasing a
de facto relationship did not.
Wayne Scott's last Will (dated 2 December 2003) gave the
bulk of his estate to 'my de facto wife KATHRINE MARY
MURRAY'. Mr Scott and Ms Murray ended their relationship
permanently on 21 December 2011, and Mr Scott died on 28 August
2014 without changing his Will.
The Court decided that Ms Murray did not receive the gift under
the Will because she and Mr Scott had ceased to be de facto
spouses. Master Sanderson stated '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'.
It is an interesting decision, as the previous view would have
been that Ms Murray would still be entitled to her gift despite the
ceasing of the relationship. If Ms Murray had not been referred to
as 'my de facto wife', and simply named in the Will, then
she would still have been entitled to the gift.
The decision is a development that we have not previously seen,
and has a number of implications.
De facto couples must review their estate planning arrangements
when the relationship ends, either to preserve gifts to a former
partner, or to remove them. It is not practical at this early stage
to rely on this single recent decision as a complete and correct
statement of the law, and updating arrangements can make the result
clear and certain.
A person who has separated from a spouse to whom they are
married, but not yet divorced, should also review their estate
planning arrangements as a possible extension of this case would be
to remove a gift to a spouse from whom someone had separated but
not divorced at the date of their death.
Executors should be careful when administering estates where
the Will refers to a person who was a former spouse of the
deceased. After Blyth v Wilken, the separation may have changed how
the Will operates.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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