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I am getting married do I need to change my Will? I am getting divorced do I need to change my Will?

13/12/2021

Regardless at what stage in your life you make a Will (Last Will and Testament), the validity and effectiveness of a Will can be affected by certain events by operation of law.  These events can affect who receives your estate upon your death.  It is important to ensure that your Will is always a proper and effective Will. 

What is a Will?

A Will is a legal document that contains provisions which express your wishes so far as the distribution of your estate is concerned upon your death.  In all States and Territories of Australia, there is legislation that sets out the technical requirements that must be met to ensure that a Will is valid and will give effect to your wishes.  There is legislation which provides that a Court may set aside a Will or challenge the gifts and benefits made in a Will. 

In New South Wales the technical requirements for a valid Will and the circumstances in which a Will can be revoked or partially revoked is governed by the Succession Act (NSW) 2006. 

Can a Will be affected by marriage or divorce or both?

The answer to this question is yes.  A Will is affected when a person marries and when a person is divorced. 

What is the Law?

Will - Effect of Marriage – New South Wales

In New South Wales the Succession Act 2006 provides that:

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 full revocation will not occur in respect of:-

  1. a disposition (gift) to the person to whom the Testator is married at the time of his or her death. 
  2. The appointment of as Executor, Trustee or Guardian to the person to whom the Testator is married at the time of his or her death. 
  3. 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. 

Will – Effect of Divorce

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

  1. 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. 
  2. An appointment of the Testator’s former spouse as Executor, Trustee or Guardian made by the Will will be revoked by a divorce.  
  3. 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. 

Watson & Watson Advice

Watson & Watson advise that when events such as marriage and divorce occur, a person should review their existing Will.  In circumstances where they are to be married and wish to enter a Will, the Will can be drafted in contemplation of the marriage and if that is the approach taken, the Will will not be revoked when you marry.  If the Will is not expressed to be in contemplation of marriage then upon marriage, the Will will be revoked and you will be without a Will (intestate). 

At Watson & Watson we advise that upon divorce a new Will should be entered so that your former spouse does not take any benefit under you Will and that reliance on the Statutory provisions contained in the Succession Act to disentitle your former spouse should not be relied on. 

In other words, before marriage and after divorce there should be a thorough consideration of your Will and a new Will prepared reflective of your wishes so far as the distribution of your Estate is concerned. 

When a marriage or relationship comes to an end which invariably involves divorce, financial/property settlements and contact issues for child/ren, it can be difficult and emotionally draining to deal with.  Often times, people fail to consider their Will and how it will be impacted by the break down/end of the marriage or relationship.  At Watson & Watson our experienced Senior Family Law Solicitors can assist you in addressing this issue and avert any potential problems down the track.  Please call Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice at the outset.

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

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