Categories: Wills and Estates

by D Hatharasingha


Author: FourLion Legal

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What is a Will?

A Will is a legal document that allows any person over the age of 18 years and of sound legal capacity to describe how they wish for their assets to be distributed upon their death. In a Will, you may also nominate an executor who is responsible for the distribution of your estate in accordance with your Will, and nominate a guardian for your minor children.

A Will is not valid unless:

  • it is in writing; and
  • it is signed by the testator/testatrix (person making the Will); and
  • the testator’s/testatrix’s signature is witnessed by two persons who are not beneficiaries and who are over 18 years of age; and
  • the witnesses attest the Will in the presence of the testator/testatrix.

How does marriage and divorce affect a Will?

  1. Marriage can invalidate your Will, except in circumstances where the Will was made in contemplation of the marriage.
  2. Whist marriage invalidates your Will, divorce does not necessarily invalidate your Will.

In Western Australia, divorce invalidates your Will if:

  • there is no evidence of a contrary intention in the Will;
  • the divorce takes effect under the Family Law Act 1975 (Cth); and
  • the marriage ended on or after 9 February 2008.3

As such, if you separate or do get divorced it is strongly advised you update your Will, as you may otherwise leave your estate to your former spouse or partner unintentionally.

It is important that people who are married or divorced update their Will accordingly, so that they do not die without a valid Will and their testamentary wishes are clear. It is also important that should you have minor children, a guardian is nominated to care for them.

What happens if I do not have a valid Will?

According to the Public Trustee, more than 50% of adult Australians do not have a valid Will.

If you do not have a valid Will, your estate will be subject to the intestacy provisions of the Administration Act 1903 (WA) and be divided according to law, irrespective of any testamentary intentions you may have previously made.

In some circumstances your estate may be distributed to persons to whom you no longer have a close personal relationship with.

What happens if I exclude particular close relations from my Will?

Any of the following people may make a family provision claim pursuant to the Family Provision Act 1972 (WA) and seek greater provision from your estate:

  • a spouse;
  • children;
  • parents; or
  • a de facto partner.

Stepchildren, grandchildren or former spouses or de-facto partners may also contest a Will in some circumstances.

If you wish to exclude any of the above-mentioned persons from your Will, it is important you provide a supporting Statutory Declaration to explain why you do not wish for them to receive a distribution from your estate. Whist this does not preclude a Court from making an order for greater provision from your estate, it does give the Court valuable insight into the reasons for your distribution and the Court may take the contents of the Statutory Declaration into account when making its decision with respect to the family provision claim.

If you:

  • have recently been married, separated or divorced
  • have not got a Will or need to now update your Will,
  • feel that you have not been adequately provided for in a Will; or
  • a loved one has died without a Will,

Please contact our team at FourLion Legal, as we have experience in drafting Wills and contesting Wills in family provision claims

1 Wills Act 1970 (WA) s 8.
2 Wills Act 1970 (WA) s 14.
3 Wills Act 1970 (WA) s 14A.
4 Public Trustee, Wills, Department of Justice, (11 July 2017)

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