Marriage and divorce change the operation of Wills, but until a decision of the Supreme Court of Western Australia in Blyth v Wilken [2015] 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.

  1. 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.
  2. 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.
  3. 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.