06 March 2018

Should I wait until I am divorced to update my will?

The effect of separation vs divorce on a will

Last week over a latte, my friend and I were chatting about her recent separation from her husband and the need to update her will.  Alarmingly, she told me that she had heard that there was no point in doing a new will until her divorce had been finalised, as divorce would revoke her new will.  Given that she has young children, I stressed to her that this was incorrect and she should not wait another day to get her estate planning affairs in order.

There seems to be a misunderstanding about divorce and the appropriate time to update your will or do a new will.  Let me just stress to you that 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?

Part of what my friend had heard had some truth to it, but it was not the whole truth – so let’s discuss what the effect of divorce is 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).

Let’s use the example of Sally and James to illustrate the effect of divorce on a will.

  • Sally and James met in 1995 and married in 1996.
  • Sally and James had a daughter in 1997 and a son in 1999.
  • In 2000, a year after their second child was born, Sally and James decided that they needed to get their estate plan sorted and had wills prepared.
  • Their wills were reciprocal versions of each other’s, whereby they appointed each other as the executor in the first instance and then James’ dad, Michael as the backup executor (in the event that something had happened to them both).
  • Sally and James were also the sole beneficiaries of each other’s estates and then in the event that they had both passed, their children were to share equally in their estate.
  • In March 2012 Sally and James separated.
  • In June 2013 Sally and James divorced.
  • In 2014 Sally passed away. Sally did not prepare a new will upon separation or divorce, and therefore her 2000 will was the last will to be followed.
  • As Sally and James were divorced at the time she passed away, only the provisions relating to James were revoked, however the provision appointing James’ dad as the executor and gifting her estate to their children, remained in place.

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 will get just that, everything.

So using the example above, if we change the circumstances slightly so that in December 2012 Sally unexpectedly passed away (whist she was separated from James, but not yet divorced) then her existing 2000 will (in its entirety) will remain valid and James will be the sole executor and beneficiary of her estate.

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?

Recent changes to the Succession Act 1981 last year state that 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”.    Again, in saying this, we do not recommend that you delay your estate planning until you get married.

If you are thinking about getting married in the future or are recently engaged, we recommend that you still get your wills prepared.  What we would do, to ensure that your wills remain valid before and after marriage, is draft a simple clause stating that your will is made “in contemplation of your marriage”.  This clause will prevent your will from being revoked.

I often find, especially for younger clients, that a lot of the time they still wish to make provisions for their siblings or parents even if they are getting married.  Especially 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.

If this blog has piqued your interest and you have any questions about relationship changes and the impact on an estate plan, please do not hesitate to contact Bianca Stafford.

“Never leave that till tomorrow which you can do today”

– Benjamin Franklin

*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;

  1. 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;
  2. 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.

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