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15 July 2010 Marriage, divorce and separation - when should you change your will?

By Caroline Bass, Senior Associate


In Brief

Marriage, divorce and separation are all events which require you to change your Will.


Marriage

If you marry it is imperative that you make a new Will.

If you marry after you have made a Will, the Will is automatically revoked (or cancelled). The only exception to this rule is if the Will is made in contemplation of marriage. If you are planning to marry in the near future and you wish to have a Will made in contemplation of marriage, you should obtain legal advice from your solicitor.

Divorce

Unlike marriage, divorce does not automatically invalidate a Will. Consequently, when a person divorces they should update their Will immediately.

A divorce only revokes or cancels any gift to your former spouse.

It also cancels your former spouse’s appointment as Executor, trustee or guardian in the Will but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and your former spouse.

However, there is the ability for a former spouse to argue before the court that a deceased person did not intend that the Will be revoked by the divorce. A successful application before the Supreme Court could see your Estate pass to your former spouse, despite the fact that you divorced. Although it is rare for these applications to succeed, it can occur. To avoid the risk of such a claim, upon divorce you need to have an updated Will.

Separation

Unlike marriage and divorce, separation itself does not affect the validity of a Will.

It is therefore of the utmost importance that upon separation you update your Will immediately.

There have been several cases where a person has died during the period between separation and divorce and their former spouse has been entitled to the whole of the Estate, either due to a failure to update the Will or by not having a Will in place at all.

Conclusion - Ensure your Will is kept current

I cannot stress enough the importance of having a current Will. Wills should be reviewed at every significant event in one’s life but it is imperative that it is done promptly upon marriage, divorce and separation.

For further information please contact:

Annette Wilson, Partner  |  Phone: +61 2 9233 5544  |  Email: amw@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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