Marriage, Divorce and your Will – What you need to know

About half of all Australians don’t have a valid Will. Of those who do, many put their Will away in the bottom drawer of their filing cabinet and never think of it again. But making a Will is not a once in a lifetime task. Rather, it’s something that needs to be reconsidered and perhaps re-done regularly, and certainly when major changes happen in your life. Marriage and divorce are two such major changes.

Marriage and your Will

In general terms, marriage revokes a Will. That is, if you have married since you made your Will, that Will is probably no longer valid. If you die without making a new Will, your estate could be dealt with under the intestacy laws, where the government, not you, decides how your estate should be distributed.

There are some exceptions to this, which differ from State to State or Territory. In NSW, Victoria, Tasmania, the Northern Territory and Queensland, any appointment of your spouse as your executor and any gift in your Will to your spouse will still be valid after your marriage. However, the rest of your Will would be revoked. That means some of your wishes may not be followed in the event of your death.

In ACT, South Australia and Western Australia even gifts to your spouse or an appointment of your spouse as executor would not survive your marriage. The Will as a whole would be revoked.

It is, however, possible to make a Will in contemplation of marriage – of a specific marriage or of marriage generally. If done properly, this would still be valid after a subsequent marriage.

Divorce and your Will

Generally, the effect of divorce on your Will is to treat your former spouse as if he or she died before you. That is, the rest of your Will would still be valid, but your ex-spouse would not be appointed as your executor and would not receive a gift from your estate, even if that is what your Will says. However, as with the effect of marriage on a Will, there are some exceptions to this, and they differ throughout Australia.

Everywhere except Tasmania, if the Court finds that the deceased intended for his or her former spouse to be appointed as executor or receive a gift from the estate despite their divorce, that appointment or gift would still be valid. In South Australia, that intention must be stated in the Will itself. Elsewhere, the Court may be satisfied as to the deceased’s intentions through other evidence. That, of course, opens the possibility of litigation about what the deceased’s intentions were.

Another exception relates to appointing your former spouse as trustee of a trust to benefit people including your former spouse’s children. This applies in NSW, Victoria, Tasmania, the Northern Territory and Queensland. In those places, if your Will appoints your former spouse as the trustee of a trust for beneficiaries including his or her children, your former spouse will still become that trustee, despite your divorce. Be aware that this relates to a trust created by your Will whose beneficiaries could include people other than your ex-spouse’s children. After your divorce, would you really want your ex to be the trustee of that trust?

Finally, the laws about how the ending of a marriage affects a Will relate only to divorce or annulment. They do not relate to mere separation. In other words, if you separate but remain married, your Will would take effect as if you and your spouse were still happily living together. Again, you need to ask yourself whether that really reflects your wishes.

Divorce and your Will – Isn’t a property settlement enough?

If those laws weren’t complicated enough, some Australian States and Territories allow former spouses to go to Court and seek part of the deceased’s estate, regardless of what the Will might have said. That is the case in NSW, ACT and South Australia, even if you have already finalised a family law property settlement and your ex-spouse was not dependant on you when you died. In Tasmania, Western Australia, the Northern Territory and Queensland, your former spouse can only make a claim on your estate if he or she was being maintained by or was financially dependant on you at the time of your death. Victoria only allows such a claim to be made if, by the time of death, the deceased and his or her ex-spouse had not started or finished a family law property settlement.

If you are separated but not yet divorced, the question of whether your estranged spouse can make a claim on your estate is even more complicated.

Conclusion

Making a Will is not a once in a lifetime job. A Will should not be put away in a bottom drawer, never to be looked at again. It should be reviewed regularly, particularly when major changes occur in your life. Marriage, separation and divorce are major life changes that can have unintended consequences for your Will.

It is important to seek advice about your Will and estate planning at times of all major life events and changes in significant relationships.

If you or someone you know wants more information or needs help or advice, please contact us on (08) 9380 9288 or email guy@dclawyers.com.au, or robert@dclawyers.com.au.

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