Have you recently separated, divorced or married?  Don’t forget to update your Will!

If you have recently separated, divorced, married or are considering doing one or more of these things, keep reading! This article will give you some insight into the importance of updating your Will, especially in the event of a significant relationship change.

Why do I need a Will?
A Will is one of the most important documents you will ever sign. It is your opportunity to stipulate the way your assets are to be distributed upon your death. It also gives you the power to nominate the person(s) who will be your representative and administer your estate as per your wishes. Without a Will, you are letting the law determine where your estate goes when you die and who will administer your estate. The law’s determination may not always align with your wishes.

As lawyers, we are often asked “What’s the point in making a Will when your wishes can be overturned?” Although there are circumstances where a Will may be challenged, we all have the right to make a Will which reflects our current wishes and to amend that Will as our wishes change. Nothing impacts a person’s testamentary wishes more than a separation, divorce, marriage or other significant change in one’s relationship.

So why does it take some people such a long time to update their Will after separation, divorce or marriage? Is it because they simply “haven’t got around to it”? Or is it because they are unaware of how the validity of their Will is affected by these events?

The following summary helps to clarify the legal position when it comes to the effect of separation, divorce and marriage on a Will:

What happens to my Will if I separate from my spouse?
The simple answer to this question is……nothing! Your Will is still a valid and legally binding document in its entirety if you separate from your spouse and have not yet become divorced. For this reason, it is important that you consult an experienced wills and estates lawyer in the event of separation to ensure that your Will is updated without delay.

What happens to my Will if I get divorced?
If a Will is made on or after 20 July 1998 and has not been updated when the will-maker’s divorce becomes absolute, the divorce will revoke the following provisions of the Will:

• Any gift to the former spouse
• Any appointment of the former spouse as executor, trustee, advisory trustee or guardian (excluding any appointment of the former spouse as trustee of property left to beneficiaries that include the children of the former spouse); and
• Any grant of a power of appointment exercisable by or in favour of the former spouse (excluding a power of appointment exercisable in favour of the children of the will-maker and the former spouse).

Please note, the above will also apply to any Wills made prior to 20 July 1998 where the divorce became absolute after this date.

What happens to my Will if I get married?
If a person makes a Will on or after 20 July 1998 and thereafter gets married, the Will made prior to the marriage will be revoked upon the marriage taking place. However, two provisions of the Will which will not be revoked as a result of the marriage are:

• Any gift to the person to whom the will-maker is married at the date of his/her death; and
• Any appointment as executor, trustee, advisory trustee or guardian of the person to whom the will-maker is married at the date of his/her death.

However, if a Will is made in contemplation of a marriage, the Will is not revoked by the marriage taking place.

Here are a couple of scenarios to help illustrate:

Scenario 1
Before they had met each other, Wes and Sophie made Wills in 2005 and 2009 respectively. They got married in 2015 and did not make new Wills. They became divorced in 2022. Are their Wills still valid?

The Wills from 2005 and 2009 were fully revoked upon the date of marriage. Therefore, neither Wes nor Sophie have a valid Will in place.

Scenario 2
Amy made her Will in 2002. In 2014, she married Ben and they never had children. They separated late last year, and it has been ten months since Ben moved out of the family home. They have already divided their marital assets in accordance with the family law Court Order. Amy then dies suddenly. What happens to her estate? 

The marriage revoked Amy’s 2002 Will.  As she never made a new Will, she died ‘intestate’ (i.e. without a valid Will). By the Victorian laws of intestacy, Ben will receive all of Amy’s estate as he is still Amy’s legal spouse.

It is crucial that you review your existing Will if your circumstances change.  For example:

• You become separated, divorced or married
• There is a birth, death, marriage, separation or divorce in the family
• You acquire or sell property
• You have come into, or lost, money or assets
• Somebody becomes financially dependent on you; or
• Any of your beneficiaries become bankrupt.

Our experienced Wills and Estates team can assist you with all aspects of estate planning. Please don’t hesitate to contact us to schedule your initial consultation.

(The information contained in this article is of a general nature and does not take into account the individual circumstances of the reader.)

This article was written by Tanya Briffa, Special Counsel - Wills & Estates and Kelly Owens, Lawyer - Wills & Estates.