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Blyth v Wilken – Ending a De Facto Relationship May Change Your Will

I have previously blogged about when you should review your will and estate planning. One of the triggers to review your will and estate planning is if you have divorced. In the case of a divorce, any references to your former spouse will be omitted from your will. The position on whether the end of a de facto relationship does the same thing has been unclear.

In a recent case in Western Australia, Blythe v Wilken [2015] WASC 486, it has been held that a distribution to a ‘de facto spouse’ in a will, will automatically fall away upon the end of the de facto relationship.

Facts of Blyth v Wilken

The facts of Blyth v Wilken are:

  1. Wayne Scott’s will dated 2 December 2003 distributed his estate to his ‘de facto wife, Kathrine Mary Murray’;
  1. the de facto relationship between Mr Scott and Ms Murray ended on 21 December 2011;
  1. Mr Scott died on 28 August 2014;
  1. the will dated 2 December 2003 was the last will of Mr Scott.

The Court held that because Mr Scott’s will names his de facto wife, Kathrine Mary Murray, as the beneficiary of his estate, once their relationship ended the intended distribution to her fell away.

The judgment suggests that if Mr Scott had not referred to Ms Murray as his de facto wife in his will, that her interest in his estate would be unchanged.

Effects of Blyth v Wilken

The implications of this case include:

  1. where de facto couples separate they must consider their wills and estate planning. It is possible that the separation will mean that a reference to their former de facto partner will be omitted from their will;
  1. executors will need to consider any distributions to a ‘de facto partner’ under a deceased’s will and whether the will is changed as a result of this case.

The decision in Blyth v Wilken takes a position not seen before. Although Blyth v Wilken will more than likely be developed in time to come, it is important to ensure there is no ambiguity in your will and estate planning arrangements. If you have recently ended a de facto relationship or separated from your spouse, and have concerns about your will or estate planning, please do not hesitate to contact me.

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Written by—

Chloe Kopilovic

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