I have a client who would like to provide a gift to his estranged wife under his will. They are separated and going to obtain a divorce in the future. I need to ensure that the gift to the wife does not lapse after their divorce. Is there a clause or wording which will protect the gift after the divorce is finalised or should I get him to re-affirm the gift perhaps by codicil at the appropriate time. I am concerned that the client will forget to do so and the gift to the (then)ex-wife will fail.
sharon edelstyn
Phoenix Legal Group
The relevant provisions can be disapplied. I suggest it is sufficient
to include with the gift to the (soon to be) ex spouse that the relevant
provisions of the Law Reform (Miscellaneous Provisions) Act are excluded
from the operation of the will.
Paul Saunders
s.18A WA 1837, like many of the statutory provisions, takes effect ‘…except in so far as a contrary intention appears by the will.’
As long as it is sufficiently clear that the gift is not to lapse upon divorce then the provision will be overidden - ‘…and I declare that this gift shall take effect even if I am not married to x at the time of my death’ (or similar).
Richard Whitaker
Shoosmiths
You might want to make it conditional on not making a claim against the estate-depending on the state of the financial arrangements.
Simon Northcott