Till Divorce do us part...

Till Divorce do us part...

TILL DIVORCE DO US PART

There’s a potential trap in West Australian legislation and Tasmanian legislation that sets us apart from the rest of the country. Unlike other States, a Divorce will automatically revoke your Will, cancelling your Will altogether and leaving you intestate.

The operative section of the Will Act 1970 (WA) is section 14A, which provides that a Will is revoked by the ending of a testator’s marriage unless a contrary intention appears in the Will, or there is other evidence establishing the intention of the Will to remain unrevoked following the ending of the marriage. Accordingly, should your Will not contain any evidence to the contrary, it is imperative to have a new Will drafted, as soon as possible.

 

It’s important to note that generally speaking, the separation of a married couple, or the demise of a de facto relationship, will not revoke a Will. However, in these cases, it is equally important to review and update your Will if necessary – there have been a number of cases where a former de facto partner or separated spouse has been entitled to an entire Estate owing to an out-of-date Will.

Similarly, if you marry after you have made a Will, your Will is automatically revoked, unless it is made in contemplation of Marriage (Will Act 1970 (WA), section 14). By the same token, the commencement of a de facto relationship will not revoke a Will.

The moral of the story is to keep you Will up-to-date. Whilst it is important to review your Will at every significant event during your lifetime, it is particularly the case when it comes to Marriage, Divorce and separation.

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To BFA or not to BFA

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Wednesday, 21 August 2019