What happens to a Will on divorce in Western Australia?
Traditionally, in Western Australia, if a couple had their Wills prepared while married and then they subsequently divorced, their divorce would not have affected the validity of their Wills.
Not all States had the same laws, which could lead to some inconsistent, if not strange, outcomes. For instance, if a person married in New South Wales, owned property there, made a Will leaving all of his or her assets to the spouse, then divorced that spouse and made a new life in Western Australia, where he or she bought a new home, the Will made while married would have been invalid under New South Wales law, but been valid under Western Australian law. Under the Will, the ex-husband or wife would have received a windfall.
However, the law in Western Australia has been changed to bring it into line with other States. If a person gets divorced or his or her marriage is annulled on or after 9 February 2008, then that person's Will is automatically revoked unless:
- a contrary intention is expressed in the Will; or
- there is other evidence showing this intention (usually by statutory declaration).
Importantly, if a person divorced before 9 February 2008, then that person's Will is not revoked when they divorced.
If a Will is revoked and there are no other Wills in existence at the time of a person's death, then on death, that person may be considered to have died intestate. If a person dies intestate, from our experience, it is likely that the estate will be distributed in a manner which would be different from that person's wishes. For the risks associated with dying intestate, please see the article "Why your Will should cost more than a coffee machine".
Therefore, if a person has recently been divorced (even if it is before 9 February 2008), it is recommended that that person seek advice as to the effect that divorce may have on their Will and general estate planning.
For further information or advice on this topic, please contact Russell Morley, Senior Lawyer, by email at rmorley@talbotolivier.com.au or Rob Durey, Principal, by email at rdurey@talbotolivier.com.au.
