30/05/2016

When married couples get divorced, a testator’s Will is revoked. In contrast, for de facto couples a will continues to have effect even when the relationship ends unless it is changed by the testator.

In Blyth v Wilken [2015] WASC 486 a clause in the testator’s Will contained four little words that left the testator’s residuary estate “to my de facto”.  However, at the time the testator passed away the named lady in question (Katherine) was no longer the deceased’s de facto spouse as the relationship had ended a couple of years prior to the testator’s death.

The court took the view that as Katherine was not the de facto spouse of the testator on the date of his death, she could not benefit under the clause.  The court looked at the reality of the relationship at the time of death and also noted that it could not have been the deceased’s intention to leave his estate to his ex-de facto spouse where he had been separated from her for several years.

When a testator is having a Will prepared and is in a de facto relationship that breaks down, the testator’s Will should be reviewed and amended according to the testator’s current circumstances.  Additionally, when a Will is being drafted the reference to persons via their relationships, such as “my de facto”, before a named individual should be carefully considered, particularly where it is possible for that relationship to change.

After any relationship ends all estate planning documents should be carefully reviewed and updated as it is common for people to nominate their spouse (whether formal or de facto) as a beneficiary in Wills and death benefit nominations and to act as executor and enduring attorneys or guardians.  

The testator in the above case should have updated his Will after his relationship ended which would have avoided the need for this case to go through the courts.  

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.