After making a Will, it can be tempting to tick it off your ‘To Do’ list and never think of it again. Regularly reviewing your Will is important – particularly when there is a significant change in your personal circumstances – such as marriage or divorce.
What most people aren’t aware of is that in some parts of Australia (including the ACT!) your previous Will is almost always automatically revoked if you subsequently marry.
Marriage and your Will
Each State and Territory has their own legislation which regulates Wills and consequently the impact that marriage may have on a Will differs between the various jurisdictions.
In NSW, Victoria, Tasmania, the Northern Territory and Queensland, any appointment of your spouse as your executor, and any gift in your Will to your spouse, will still be valid after your marriage. However, the rest of your Will will be revoked.
In the ACT, South Australia and Western Australia the effect of marriage is to revoke your Will in its entirety, even if in your will you have appointed your spouse as your executor and sole beneficiary.
It is, however, possible to make a Will ‘in contemplation of marriage’. Such a Will would still be valid after a subsequent marriage.
In practical terms, this means that if you have married (or entered into a civil union or civil partnership) since you made your Will, it is likely that the Will you made has been automatically revoked, and is no longer valid. Unless you make a new Will it may mean that you die ‘intestate’. This can have unexpected and potentially adverse consequences for your estate.
Divorce and your Will
The impact divorce has on your Will varies between the various Australian States and Territories as well. Generally, the effect of divorce on your Will is to treat (somewhat poetically) your former spouse as though they had died before you. The remainder of your Will remains intact. There are however some exceptions.
Depending on how your Will is drafted, this may have unusual consequences for the distribution of your estate, and in some cases may result in part or all of your estate being dealt with by the rules of intestacy.
We recommend that following a divorce you review your Will immediately.
Separation
If you have separated from your spouse, but not yet divorced, then it is essential that you review your Will as this change in personal circumstances may impact the decisions you had previously made with respect to executors, trustees and beneficiaries.
Unlike divorce, separation will not have a direct and automatic impact on your Will.
Conclusion
Making a Will is not a once in a lifetime job. A Will should not be made and kept with your Solicitor, never to be looked at again. It should be reviewed regularly particularly when there has been a significant change in your personal circumstances. Marriage, separation and divorce are major life changes that can have unintended consequences for your Will.
If you or someone you know would like more information on how marriage, divorce or separation may impact your Will please contact Brian Tetlow or Emma Bragg on (02) 6140 3263 or email [email protected].