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:

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. 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.

Publications

Where is my mind? The rise of con­tentious pro­bate pro­ceed­ings sur­round­ing the issue of tes­ta­men­tary capacity

In New South Wales, fam­i­ly pro­vi­sion and con­tentious pro­bate claims under the Suc­ces­sion Act 2006 (NSW) are increas­ing­ly focused on…

Kyle and Jack­ie O: The Work­place Rela­tions Law Perspective

The rela­tion­ship between show­busi­ness duos often comes to an acri­mo­nious end. Mar­tin and Lewis split at the height of their…

The Paper­cut Deci­sion and the Cur­rent Posi­tion on WFH

The FWC’s John­son v Paper­Cut Soft­ware deci­sion has renewed debate about the lim­its of work­ing from home rights. While some have…

In the News

Michael Byrnes appeared on The Quar­ter Hour, a radio indus­try pod­cast host­ed by Wade Kings­ley, to dis­cuss the legal aspects of the Kyle and Jack­ie O split, on 13 March 2026

Michael Byrnes appeared on The Quar­ter Hour, a radio indus­try pod­cast host­ed by Wade Kings­ley, to dis­cuss the legal aspects of the…

McK­night Tonight with Robert McK­night inter­views Michael Byrnes on the legal aspects of the Kyle and Jack­ie O split (from 28:25 to 51:00):

In this in‑depth inter­view, Michael Byrnes, Part­ner and employ­ment law spe­cial­ist, shares prac­ti­cal insights on work­place rela­tions, employ­ment law trends…

Michael Byrnes is quot­ed in the arti­cle, DIY jus­tice: The surge of self-rep­re­sen­ta­tion and its toll on the jus­tice sys­tem”, pub­lished in Lawyers Week­ly on 11 March 2026

Michael Byrnes is quot­ed in the arti­cle, ​“DIY jus­tice: The surge of self-rep­re­sen­ta­tion and its toll on the jus­tice sys­tem”…

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