About half of all Australians do not 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 legally 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 New South Wales, Victoria, Tasmania, the Northern Territory and Queensland, any appointment of your spouse as your executor and any gift in your Will to your new 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 the Australian Capital Territory, South Australia and Western Australia even gifts to your new 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. Such a Will would generally 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- on the date of your divorce. 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 relevant Court finds that the deceased intended for his or her former spouse to be appointed as executor or receive a gift from the estate notwithstanding their divorce, that appointment or gift would still be valid. In South Australia, that intention must be stated clearly in the Will itself. In other States or Territories, the Court may be satisfied as to the deceased’s intentions through other evidence. That, of course, opens the possibility of expensive litigation about what the deceased’s intentions actually 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 New South Wales, Victoria, Tasmania, the Northern Territory and Queensland. In those jurisdictions, 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. This should be considered carefully. After your divorce, would you really want your ex- spouse 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 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 consider carefully whether that would reflect your wishes.
Divorce and your Will – Isn’t a property settlement enough?
If those laws were not already complicated enough, some Australian States and Territories allow former spouses to make application to the Courts seeking provision from the deceased’s estate, regardless of what the Will might provide. That is the case in New South Wales, the Australian Capital Territory, 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 concluded a family law property settlement.
If you are separated but not yet divorced, the situation as to whether your estranged spouse can make a claim on your estate is even more complicated.
Making a Will is not “set and forget” once off process. 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 or in the lives of your intended beneficiaries. 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, contact us on (08) 8344 6422 or email [email protected].