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Divorce Will Estate Planning Estate Litigation Lawyers Queensland

How Does Divorce Affect You And Your Will?

In most jurisdictions in Australia, except Western Australia, the whole Will (in the case of Tasmania) or certain provisions contained in the Will (in other States), are revoked by the divorce or annulment of the marriage.

Western Australia

In Western Australia, a Will made before a divorce will continue until it is actually revoked by the Will maker. This is particularly dangerous if a person dies after a divorce and property settlement, but has not changed their Will.

Queensland, New South Wales, Victoria, ACT, South Australia and Northern Territory

A summary of the law in all jurisdictions except Tasmania and Western Australia, is as follows:

  1. Upon divorce, any provision for the Will makers former spouse is revoked;
  2. With some exceptions, any powers of appointment exercisable by a former spouse are revoked;
  3. With some exceptions, the appointment of the former spouse as executor, trustee or guardian is revoked. In Victoria, Queensland, the Northern Territory and New South Wales, a former spouse can still be trustee for property where the beneficiaries include the children of the spouse;
  4. If a Will maker leaves a specific gift or legacy to the former spouse, that gift will form part of the balance of the estate as it will be deemed to have lapsed;
  5. All provisions relating to revocation are subject to a Court being satisfied that the Will maker had the intention of actually leaving gifts or part of the Estate to the spouse to the former spouse;
  6. In the ACT and South Australia, if the Will maker executes a document to confirm the Will, generally there will be no revocation;
  7. In New South Wales, the ACT and South Australia, a former spouse can still make a claim for family provision.

Tasmania

The effect of the Tasmanian legislation is that any distributions made in the Willmaker’s Will to their former spouse will be revoked, as will any appointment of the former spouse as an Executor or trustee in the Will. Any power of appointment which can be exercised by, or is in favour of, the former spouse is also revoked

What should I do if I have separated and I am contemplating divorce?

It is imperative that anyone who is contemplating divorce seek advice from a lawyer who specialises in Estate law so that your Will is property drafted to reflect your current circumstances and your wishes.

Please contact me if you have any further questions at all in relation to what happens to your Will after your divorce.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now