Untying the knot: how marriage, separation and divorce can influence a Will
In Australia, when you get married, if you have a Will, it will be cancelled (revoked) and rendered invalid. If you don’t have a valid Will, your property (estate) will be distributed according to special laws known as intestacy rules. This can often produce a result that is substantially different from your intentions.
After your marriage, you will need to create a new Will to ensure your estate will still be distributed according to your wishes.
However, there is one exception to this rule. Where a Will was drafted in contemplation of marriage, it will not be rendered invalid following a marriage. The reason for this is that if you have this drafting in your Will, it is likely that the decisions you made for your estate distribution were made considering your circumstances with your spouse. Completing a Will in contemplation of marriage requires bespoke drafting to ensure its validity.
Separating from your spouse does not invalidate your Will. In fact, it has no direct effect on your Will. It is likely that your wishes for your estate will change following a separation, and you need to reflect these wishes in an updated version of your Will.
If you die while separated but not divorced, your spouse may inherit any part of your estate you had initially left to them in your Will. They may also be able to act as your estate’s executor, managing the administration of your estate, whether you wanted them to or not.
If you are going through a separation, you should immediately seek legal advice and update your Will to prevent any impacts on the distribution of your estate that are not in line with your wishes.
In all Australian states and territories, except for Western Australia, a divorce order will not revoke the whole of your Will. A divorce order revokes any appointments or clauses referring to your former spouse, and the rest of your Will remains intact. For example, if you had appointed your spouse to act as your executor, or you made a gift to them, they will no longer be able to act as your executor, nor will they receive any gifts left to them from you, following your divorce.
If your Will was not updated following your divorce and you die, there are certain exceptions to consider where the court will still decide in favour of your former spouse. Where the courts believe you clearly intended for a specific clause to still relate to a former spouse, it will not be revoked. The court will also decide in favour of your former spouse if you have appointed them to act as the trustee of property you have left to your children as beneficiaries.
If a divorce order is made and your former spouse is still named in your Will, the provisions providing for them will be revoked. However, if the provisions in your Will that benefit your former spouse are made in contemplation of a divorce, or are in favour of your children, they will not be revoked by a Court.
In Western Australia, the entirety of a Will is cancelled by the ending of a Will maker’s marriage, unless there is a clear contrary intention in the Will, or evidence that establishes an intention that the Will would still be valid despite divorce.
You should not leave your Will’s interpretation in the court’s hands. It can be a costly, time consuming, and challenging situation for your family to deal with. Instead, be sure to update your Will each time your relationship circumstances change to ensure that you make it clear what provisions you are, or are not, leaving for a current or former spouse.
How can we help?
We can help with your estate planning to ensure your Will is drafted in a way that reflects your wishes. We can also provide advice on bringing a family provision claim if someone you know failed to update their Will following a change in their relationship, and their estate is not going to who you think the deceased would want it to.
This article was prepared with the assistance of Georgia Dingle, Law Graduate.
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