There seems to be a misunderstanding about divorce and the appropriate time to update your will or do a new will. You should always have a current and up to date will in place. Waiting for your divorce to be finalised is never a good reason to delay your estate planning.
What’s the effect of divorce on a will?
In Queensland when a person makes a will (“the willmaker”) and then later divorces, any provision appointing the willmaker’s former spouse as executor, trustee and/or guardian will be revoked and taken to have been omitted from the will. Further, any gifts made in favour of the former spouse are automatically revoked upon divorce. All other provisions in a will not relating to the former spouse, generally will remain valid and effective.
As divorce only revokes the provisions to your former spouse in your will and not your whole will, you do not need to wait for your divorce to be finalised to prepare a new will (and I do not recommend that you wait). Whist this example may seem reasonable to many of you, it is important to bear in mind that only upon a formal divorce will those provisions to a former spouse be revoked.
What happens if I am separated but not divorced?
For married couples, separation alone will not revoke a will. In Australia married couples must be separated for a minimum period of twelve (12) months before making an application for a divorce. During the period of separation (which is sometimes many years) if you have an old, outdated will in place gifting everything to your former spouse, he/she may get just that, everything.
What if I don’t have a will?
It is just as bad, if not worse, if you don’t have a will in place and you are recently separated but not divorced. If you do not have a will in place and are legally married at the time of your passing, then under the rules of intestacy your former spouse will get a large portion, if not all, of your estate.
When should I do a new will or update my existing will?
A lot of clients prefer to hold off preparing a new will or reviewing their existing will until their divorce and/or property settlement has been finalised. I do not recommend this. Whist you might feel like you have 101 things to do and your life is chaotic, a new or revised estate plan should be at the top of your “To Do” list.
What other life changing events will affect my will?
The ending of a de facto relationship or civil partnership will also revoke the provisions to a former spouse in a will. So even if you are not married, you should bear this in mind.
Marriage will automatically revoke a will*, unless the will is made “in contemplation of marriage”. I often find, especially for younger clients, that they still wish to make provisions for their siblings or parents even if they are getting married. Usually if their parents have gifted them a sum of money or have provided a guarantee to assist them in buying their first home. If they prepare a will making these provisions for family members and then later get married, and their will has not been made in contemplation of marriage, then these special gifts to family members will be revoked.
*It is important to note that marriage will not revoke the following provisions in a will pre-dating marriage:
- a gift to the person to whom the willmaker is married to at the time of the willmaker’s death;
- an appointment as executor, trustee, advisory trustee or guardian of the person to whom the willmaker is married at the time of the willmaker’s death;
- a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the willmaker or to an administrator of any estate of the willmaker if the power of appointment were not exercised.
Information contained in this article is of a general nature only and is applicable to the current law in Queensland. It is not intended to address the circumstances of any particular individual or entity. Please note that the law in each state and territory may differ. We recommend that you contact one of our experienced wills and estates solicitors to obtain advice about your individual circumstances.