Deemed Lapse of Gift to Result from Triggering Event under the Family Law Act
Section 16 of the current Wills Act provides that gifts to a spouse are revoked only upon an order for judicial separation, judgment for divorce, or a court decree of nullity.
Under the WESA, this provision has been extended and harmonized with the Family Law Act. By definition, a person now ceases to be a spouse if an event occurs that causes an interest in family property to arise within the meaning of the Family Law Act (WESA, s. 2(2)).
A person also ceases to be a spouse after two years separation for the purposes of the WESA legislation.
Accordingly, a gift in a will to a person who has subsequently ceased to be a spouse, or an appointment of that person as an executor, is revoked and any gift will be treated as though the spouse had predeceased the will-maker (WESA, s. 56(2)).
This is however subject to a contrary intention appearing in a will. It should be noted however the revocation continues notwithstanding a subsequent reconciliation of the will-maker and the spouse (s. 56(3)).