Your Last Will and Testament - Is it Affected by Marriage or Divorce?

27/03/2018

A valid Will comes into operation once you die. 

The effect of marriage or divorce on your Will varies depending on the laws of which State of Australia apply.

If you are getting married or are getting divorced it is important to understand the effect of your marriage and divorce on your Will.  You may have made a Will sometime in the past - before you married or after your marriage but before your divorce.

There are significant ways in which marriage and divorce can cause problems and unexpected outcomes.

Will - Effect of Marriage – New South Wales

In New South Wales the Succession Act 2006 provides that:

(a)       A Will which existed before the marriage of the Testator is revoked by the marriage of the Testator.  That is the general rule.  There are some exceptions to this general rule. 

The exceptions are that a Will will not be fully revoked so far as it provides for:

(i)        A disposition (gift) to the person to whom the Testator is married at the time of his or her death.

(ii)       The appointment as Executor, Trustee or Guardian of the person to whom the Testator is married at the time of his or her death.

(iii)      A Will that is made in contemplation of a particular marriage (i.e. provides for marriage to a particular person) is not revoked by that marriage taking place. 

(iv)      A Will that is expressly made in contemplation of a marriage generally is not revoked by marriage by the Testator.

Will – Effect of Divorce

Divorce or annulment of marriage of the Testator will revoke the parts of the Testators Will:-

(a)       A beneficial disposition (gift) by a Testator to his or her former spouse made in a Will that was already in existence at the time of the divorce or annulment of marriage will be revoked by a divorce. 

(b)       An appointment of the Testator’s former spouse as Executor, Trustee or Guardian made by the Will will be revoked by a divorce.  

(c)       A grant made by the Will of a power of appointment exercisable by or in favour of the Testator’s former spouse will be revoked by a divorce.

Further Exceptions

The above does not apply if there is a contrary intention specifically expressed within the Will.  The divorce of a Testator or annulment of his or her marriage does not revoke the appointment of a former spouse as Trustee for the children of the Testator. 

The above Rules do not prevent the former spouse taking an action under the Succession Act for an Order to be made for provision out of the Testator’s Estate in their favour.

Same Sex Marriages

At the end of 2017 the Australian Federal Government passed laws providing for same-sex marriage.  These laws allow people of the same sex to marry in Australia.  Those same laws have also recognised certain marriages that took place overseas within Australia.  The position therefore is that without having done anything a party to a same sex marriage whose marriage has been recognised in Australia by operation of law may find that their Will has been revoked by operation of law.  

There should be consideration of making new Wills to ensure that there is a valid Will which is reflective of the Testators wishes.

Though little time has passed the same outcome could apply for same sex couples on divorce.

If you have any concerns regarding who will benefit from your Will should you marry or divorce and want to ensure that your loved ones will be protected should you marry or divorce please do not hesitate to contact Richard Watson Family Law Solicitor or his assistant Shereen Da Gloria to discuss your queries and alleviate any concerns you may have regarding this very crucial and sensitive aspect of family life.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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