How marriage and divorce can affect your Will
Marriage, divorce and your Will – what you need to know
About half of all Australians do not have a valid Will. Of those who do, many put their Will away in the bottom drawer of their filing cabinet and never think of it again. But making a Will is not a once in a lifetime task. Rather, it is something that needs to be reconsidered and perhaps re-done regularly, and certainly when major changes happen in your life. Marriage and divorce are two such major changes.
The Wills Act 1997 (Vic) revokes a Will on the marriage of a will maker however some provisions of the Will remain valid. These include gifts made to the will maker’s spouse at the time of his or her death, or the appointment of the will maker’s spouse as executor, trustee or guardian.
Failing to make a new Will after marrying could mean that only some parts of your old Will remain valid and its overall effect does not reflect your new circumstances and testamentary wishes.
A Will made or expressed to be made in contemplation of marriage will not be revoked upon that marriage. However, if some time has passed since making the Will it is worthwhile reviewing it to ensure that it still reflects your current circumstances and wishes.
Making a new Will in contemplation of, or immediately after marrying, provides certainty and clarity and takes into account your new relationship and circumstances.
Generally, the effect of divorce on your Will is to treat your former spouse as if he or she died before you. Unless a contrary intention is stated, provisions in a Will that provide gifts to a previous spouse, the appointment of a previous spouse as executor or trustee, or the grant of a power of appointment, will be revoked on divorce. Other terms of your Will however, may still be valid.
The Wills Act 1997 (Vic) provides that terms such as the appointment of a former spouse as trustee of property left for the benefit of the children of both the will maker and former spouse, will remain valid after divorce.
It is important to consider the effect of separation on your Will, as most partners are separated for some time before finalising a divorce or formalising a property settlement. Many people also continue living together even after their relationship breaks down, whether that is for financial, parenting, practical or other reasons.
The laws about how the ending of a marriage affects a Will relate only to divorce or annulment and not to separation. If you separate but remain married, your Will would take effect as if you and your spouse were still living together.
Property and other matters
Once you have decided to end a relationship with your spouse or partner, your Will and property should be reviewed immediately, no matter what your living arrangements.
Significant assets which are held jointly, such as real estate, must be carefully considered. The effect of jointly held property is that, upon the death of one joint tenant, the property automatically passes to the surviving tenant/s, contrary to what may be stated in a Will or the present relationship of the parties. Depending on the circumstances, it may be necessary to sever joint tenancies or to lodge a caveat to protect a party’s interests, pending formalisation of a property settlement. Your solicitor can assist with such matters.
Superannuation funds should also be reviewed, and binding death benefit nominations changed to reflect the intended beneficiaries of the proceeds of superannuation accounts and any insurance policies.
Making a Will is not a once in a lifetime job. A Will should not be put away in a bottom drawer, never to be looked at again. It should be reviewed regularly, particularly when major changes occur in your life. Marriage, separation and divorce are major life changes that can have unintended consequences on your Will.
It is important to seek advice about your Will and estate planning whenever major life events and changes in significant relationships occur.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on 03 8415 5600 or email firstname.lastname@example.org.