In some States and Territories of Australia, both marriage and divorce may have the effect of revoking a testator’s will. While some exceptions and differences in law exist throughout the various jurisdictions of Australia, if you are considering either marriage or divorce, it is essential that you revisit and re-draft your will.
In this article, we will explore why marriage and divorce have this effect on your will, as well as provide an overview of important considerations and things to look out for.
Why May Marriage Or Divorce Revoke My Will?
Traditionally, wills would generally be revoked by significant changes in person’s life. By entering into a marriage, you were agreeing to unify your financial affairs – if one partner were to die before the other, it was generally agreed that the surviving partner would receive the majority of your assets as they were already shared.
Similarly, when you formally end your marriage with a person, you are agreeing to divide your shared assets permanently. The understanding is that in divorcing your partner, he or she would lose all claims to your share of the estate.
Because in both of these instances the effect on your estate is so dramatic, the law will sometimes choose to entirely invalidate your will. This allows will-makers (‘testators’) the opportunity to redefine, in light of dramatically changed circumstances, how they would like their estate to be distributed.
At What Stage Should I Revisit My Will?
If you have plans to get married, rather than entirely revoking your will, it is often far more cost effective to simply add a codicil to your existing will. A codicil is a minor addition to the contents of your will, and while it requires the same formalities for execution as will, it saves you the hassle and expense of redrafting your will from scratch.
In the uncommon event that your will already contemplates provision for a spouse (despite not yet being married), your will may not be invalidated, and may continue to function as is.
It is important to note, also, that while divorce may invalidate your will, a marriage separation will not. If you find yourself separated and considering formally divorcing your spouse, now is the time to speak to a lawyer about altering your will. In the event that you fail to update your will while separated, your spouse may still have the opportunity to inherit anything that you have left them.
While the effect of marriage has a reasonably consistent effect across Australia, the effect of divorce changes from jurisdiction to jurisdiction. In all States and Territories, with the exception of Tasmania, a divorce will automatically invalidate your will.
In Tasmania, however, a divorce will have the effect of revoking your former spouse as the executor of your will or any gifts you may have left them [Wills Act 2008 (Tas), ss 17(1)-(2)]. Unless your will is explicitly amended, they may act as trustee for any property left by the testator for beneficiaries.
Your Will Reflects Your Intentions
As things change in life, your will ought to reflect these changes. While every little thing that comes your way shouldn’t be influencing the contents of your will, as a general guide you should review your will whenever a significant event occurs (e.g., births, deaths, marriage, divorce, acquisition or disposal of property).
If you are considering marriage or divorce at any time in the near future, take the time to consult with your lawyer about your will so that it accurately reflects your change in circumstances. At Hentys Lawyers, we are the experts in contesting wills.