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.
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:
- Upon divorce, any provision for the Will makers former spouse is revoked;
- With some exceptions, any powers of appointment exercisable by a former spouse are revoked;
- 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;
- 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;
- 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;
- In the ACT and South Australia, if the Will maker executes a document to confirm the Will, generally there will be no revocation;
- In New South Wales, the ACT and South Australia, a former spouse can still make a claim for family provision.
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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