It used to be true love; roses were gifted, dinners were cooked, finances shared. You could even hear the pitter-patter of little feet! All was well, and so you made a Will leaving everything to your significant other, put it away and never thought about it again.
Then it all went sour. Cinderella became the wicked stepmother; Prince Charming turned (back) into the frog. You parted ways, but the Will remained - gathering dust, forgotten. What does this mean for you and the rest of your family in the event of your death?
In Western Australia, the requirements for Wills are regulated by the Wills Act 1970. Section 14A of that law establishes that a Will is revoked by the ending of the willmaker’s marriage, except where a contrary intention appears in the Will (e.g. “despite my divorce, I still intend to leave these assets for my ex-wife”) or there is other evidence establishing such an intention (such as diary notes, witness evidence or any record indicating that the original intention of the Will remains the same).
Therefore, a Will made before a legal divorce occurs will, in the absence of a contrary intention, be automatically revoked by the divorce (or “annulment”).
However, it is important to note that the law clearly states it is the ending of the marriage that revokes the Will, not separation; and the rule will not apply to the ending of a de facto relationship or where partners separate but remain legally married. In these situations, your Will may still remain in effect, even though the content of that Will may be completely outdated and contrary to your intentions.
Even if you die in Western Australia without a Will (that is, you die “intestate”) your ex-partner may remain your legal “spouse” whether they are a husband/wife or de facto partner, meaning they will stay entitled to your estate until a divorce is finalised. It is dangerous and incorrect to presume that the law will intervene to prevent a bitterly estranged partner from accessing your deceased estate ahead of the remainder of your family. Worse still, your family may be forced to commence a time-consuming and expensive court process to make a claim to the assets that you assumed would be theirs in any event, or risk getting nothing at all.
Many people rely on the sentiment, “I will update/get a Will once I have sorted out my relationship property settlement”: However, as a result of the actual law in WA, it is not advisable to wait until a relationship settlement concludes before revising a Will. A family law property settlement is unrelated to a Will (or intestate estate) and might not prevent the ex-partner from receiving a gift under it.
In order to avoid uncertainty, cost and emotional distress for you and your family, we recommend that you take immediate action on separation to update or draft a Will. Zafra Legal has extensive experience in drafting Wills and providing full-service estate planning and advice, from simple estates to complex structuring.
Our solicitors are available for an obligation-free consultation by appointment.
Authors,
Elizabeth Mitchell and James Marzec
This article constitutes general information only and should not be interpreted or relied upon as legal advice. Zafra Legal recommends you obtain independent legal advice from one of our solicitors before taking any action in relation to your personal legal circumstances.