Does marriage or divorce affect your Will?


How does marriage or divorce affect my Will?

Whether you are getting married, divorced, separating or entering into a de facto relationship, it is vital to note that each of these actions can have important implications for your Will. In this blog, we’ll specifically look at the effect of divorce on your Will and how marriage revokes a Will in Australia.

Effect of marriage on your Will

So, you recently got married and you’re both anticipating life as a married couple….travel, work, kids? What about your Will(s)?

If you have thought about your estate planning needs and how you would like your assets distributed if you die, you may have already made a Will and are resting somewhat easier knowing that those you care about will be taken care of. If you haven’t considered or written your Will yet, now’s a good time to consider “what happens if you die without a Will?”.

Marriage revokes your previous Will

What many people are unaware of is that any marriage will revoke a previous Will: s 13 (1) of the Wills Act 1997 (Vic).

This can leave your estate at risk of not being distributed according to your wishes. This can be particularly troublesome where you would like certain gifts to be given to people named in your Will or if you have children from a previous marriage.

Are there are any exceptions?

Under the Wills Act 1997 (Vic) there are some important, but limited exceptions to your Will being void upon marriage.

The first is where your Will explicitly specifies that it was made “in contemplation of marriage”. In such cases, your marriage will not revoke your Will: s 13(3) of the Wills Act 1997 (Vic).

The second provides that marriage will not revoke any gifts or appointments made under your Will to the person you are married to, as long as you are still married to that person at the time of your death: s 13(2)(a) and (b) of the Wills Act 1997 (Vic).

In other words, if you have already named your new spouse in your previous Will as either the Executor or have provided them with a gift, these won’t be revoked by your marriage, as long as you are still together at the time of your death.

Effect of divorce on your Will

In Victoria, if you have made a previous Will naming or appointing your spouse as an Executor or have made a gift to your spouse under your Will, getting divorced will act to revoke only those gifts or appointments made to your former spouse. This then leaves the rest of your Will intact: s 14 of the Wills Act 1997 (Vic).

However, if you have clearly intended that those gifts or appointments were not to be revoked, then they won’t be: s 14(2) of the Wills Act 1997 (Vic).

Effect of separation on your Will

Separation from your spouse does not have the same effect as a divorce. Separation from your spouse will not act to revoke any gifts or appointments made in favour of your spouse under your Will.

Therefore, if you pass away after separation but before your divorce has been finalised and you haven’t changed your Will, your spouse will continue to receive any inheritance under your Will, notwithstanding the fact you had separated.

If you do not want your former spouse to receive any of the gifts or dispositions made under your Will, you need to change your Will to reflect the change in your relationship.

De Facto relationship

What If I am not married but I am in a de facto relationship? Do I need to change my Will?

Whilst entering into a de facto relationship does not revoke your prior Will as marriage does, it may have some important implications where your de Facto partner is not included or seen to have not been allocated an adequate provision under your Will.

Even if you have, or have not, included your de factor partner in your Will, they may still have a claim on your estate under Part IV Family Provision of the Administration and Probate Act 1958 (Vic), as an eligible person: s 90(a) of the Administration and Probate Act 1958 (Vic).

Leaving your de facto partner a small sum or token amount under your Will may not be considered, by the court, as proper provision or a discharge of your moral duty to your de facto. This is particularly the case where your de facto partner is not independently wealthy.

Take home message – keeping your Will updated

Regardless of your relationship status, one thing that is certain is that it’s important that your Will adequately reflects the changes to your relationships over time. This will ensure that your Will is consistent with your wishes at any time.

If you would like to speak with one of our estate planning lawyers about updating your Will or making a new Will, give us a call to arrange a consultation – 03 9014 1299.

There is now special legislation in Victoria for executing documents remotely during the coronavirus. You can read more about this in our recent blog “How to sign Wills and Powers of Attorney during coronavirus lockdown.

Contact David Davis Lawyers (including during COVID-19)

Phone: 03 9014 1299
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