A change in your relationship status can have a serious impact on your Will. If you have married,registered
a civil union or civil partnership,entered into a de facto relationship or are going through a separation or divorce, then it is important to make sure your Will is still valid and appropriate in the circumstances.
Many people are unaware that marriage automatically revokes an earlier Will. Similarly, registering a civil union or civil partnership also has the effect of revoking a Will. Couples who have, for example, made a Will while in a de facto relationship and who later decide to marry, register a civil union or civil partnership, may have inadvertently revoked their Will. The only exception is if the earlier Will was expressly made “in contemplation of” that particular marriage, civil union or civil partnership.
Revocation of a Will means that the person is ‘intestate’. The rules of intestacy will determine how that person’s estate will be divided upon death, which can have harsh and unintended consequences.
Although reviewing your Will might not be on your mind during a separation or divorce, it is critical that this change in your circumstances is reflected by a change to your Will.
Unlike divorce, separation does not have an effect on your Will.That period of separation before a divorce is finalised is one of the most critical times to ensure your Will is updated. If you separate and then die before updating your Will, your spouse would still inherit any property you gifted to them under your Will. Likewise, if you have named your spouse as the executor of your Will, that appointment still stands even if it is contrary to your wishes. Even if you have finalised a property settlement with your spouse, but not formally divorced, that of itself is not enough to revoke an earlier Will and you should make a new Will.
The law which covers the effect of divorce on a Will differs between each state and territory in Australia. In the ACT, divorce only revokes parts of your Will which benefit your former spouse, for example if you appointed your spouse an executor or left to them a gift of your estate (but note there are some exceptions to this). The law treats that gift as if your spouse had died before you. Depending on how your Will was initially drafted, this may have unusual outcomes or even result in intestacy.
De facto relationship
Entering a de facto relationship does not have the same effect on your Will as marriage. But as time goes on, your de facto partner may develop certain rights in respect of your property, which might conflict with the terms of your Will. In addition, if you fail to update your Will to reflect the change in your relationship status, you place your estate at risk of your de facto partner making a claim after your death for further provision out of your estate.
THE LAW WHICH COVERS THE EFFECT OF DIVORCE ON A WILL DIFFERS BETWEEN EACH STATE AND TERRITORY IN AUSTRALIA.
Simply having a Will may be of little benefit if it no longer reflects your wishes or life circumstances. As you can see there are a variety of ways in which significant changes to your relationship status can affect your Will. It is worth having your lawyer review the status of your Will following any significant changes in your life such as marriage, divorce or something in between.
Rehana Richard is a lawyer
at Dobinson Davey Clifford
Simpson, 18 Kendall Lane, New
Acton, Canberra City ACT
2601 and can be contacted on
(02) 6212 7600 or via email: