Many married couples have a Will appointing each other as Executor and providing that in the event of their death, their spouse will inherit part, if not all, of their estate. Separation and divorce both have varying effects on your Will and it is important to update your Will immediately after you separate from your spouse.
What happens to your Will when you separate from your spouse?
Marriage separation does not invalidate your Will and has no direct effect on your Will. In spite of this, the period of separation occurring before a Divorce Order is made is a very crucial period in which you must ensure that your Will reflects your changed circumstances. Should you pass away before updating your Will and before a Divorce Order is made, your spouse may inherit any property bequeathed to them in your Will regardless of whether you wanted them to or not.
What happens to your Will after a Divorce Order is made?
The effect of divorce on a Will varies from state to state. Generally a Divorce Order will not revoke your entire Will. In Victoria, in accordance with Section 14 of the Wills Act 1997 (Vic) getting divorced will revoke any appointment or disposition clauses referring to your former spouse such as clauses appointing them as your Executor and clauses making gifts to them. The rest of your Will will be left intact.
Are there any exceptions?
However, according to Section 14(2) of the Wills Act 1997(Vic), if the courts believe you have clearly intended that those clauses relating to your former spouse should not be revoked, those clauses will remain valid. You can do this by showing intention in your Will that you wish all provisions relating to your former spouse to remain in effect.
The provisions of a Will also remain valid if they relate to the appointment of your former spouse as trustee of property left on trust for beneficiaries that include any children of the marriage; or
If they relate to the grant of a power of appointment exercisable by your former spouse only in favour of the children of the marriage.
In other words, if a Divorce Order is made, only the provisions providing for your former spouse will be revoked, unless it refers to your former spouse holding assets on trust for the children or the marriage, or a power of appointment is granted to your former spouse in favour of the children of the marriage.
Instead of leaving your Will for the courts to untangle, it is best to make a new Will each time your relationship circumstances change to ensure you have made clear provisions regarding your former spouse.
For all Family Law and Estate Planning matters, RNG Lawyers can assist you. Contact our office on 03) 9739 7377 or submit an enquiry form below.