Marriage and divorce are significant life events that can have important implications for estate planning.
Fundamentally, a Will remains in force until it is revoked. This is most often done by the execution of a new Will to replace a pre-existing one.
But did you know, marriage or divorce can also affect the validity of a Will?
What is the effect of marriage on a Will?
In Victoria, any Will created before the marriage will be automatically revoked when a person marries. Certain clauses of the Will which may continue to have effect notwithstanding – for example, gifts for a spouse or appoints a spouse to certain roles such as executor. However, the rest of the Will including any provisions made to other people will generally cease to have effect, leaving them out of the estate distribution altogether.
The incorporation of a “contemplation of marriage” clause can help avoid this automatic revocation issue. The contemplation is generally understood to mean that the Willmaker expects or intends to marry. The effect of this clause is to ensure that the Will continues to have operative effect even after the solemnisation of the marriage.
If a person marries without preparing a new Will or there is no contemplation of marriage clause contained in the pre-existing Will and they then pass away, the deceased’s estate will be distributed according to the laws of intestacy in Victoria.
Additionally, a person entering into de facto relationships should note that these relationships do not automatically revoke a will. However, a de facto partner in Victoria may still have legal claims to the estate under family provision laws.
What is the effect of divorce on a Will?
Divorce also affects Wills in Victoria, but it does not revoke them in the same way as a marriage.
Under Section 14 of the Wills Act 1997 (Vic):
- any gifts made to the divorced spouse in the will are revoked;
- any appointments of the divorced spouse as executor, trustee or guardian are revoked, other than the appointment of the divorced spouse as trustee of property left upon trust for children of the spouse; and
- the rest of the Will remains valid unless otherwise specified.
In other words, if a person has a pre-existing Will that leaves assets to their spouse and later gets divorced, the provisions benefitting the former spouse are automatically revoked but the rest of the Will remains in effect.
However, if that is not the Willmaker’s intention, then careful drafting of the Will is required to ensure that the former spouse is not inadvertently excluded from benefiting from the deceased’s estate.
Importantly, legal separation does not have the same effect on the Will. Until a divorce is legally finalised, the Will remains valid, meaning that a separated spouse may still inherit under a Will. This highlights the importance of updating a Will immediately after separation to reflect new intentions.
Marriage and divorce have significant legal consequences on Wills. Marriage generally revokes a Will unless it was made in contemplation of marriage, while divorce revokes specific provisions benefiting the former spouse but does not invalidate the entire Will.
Given these automatic legal effects, individuals should review and update their estate planning whenever their marital status changes. Failing to do so can lead to unintended outcomes and the potential for disputes among surviving family members.
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The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.