The effect of marriage and divorce on your Will
Although you are free to alter/change your Will as often as you like as long as you have the capacity to do so, there are certain events in life which should automatically prompt you to update your Will.
How often should I review my Will?
A Will should be reviewed every 3 – 5 years or as soon as your personal or financial circumstances change. Marriage, separation, children, property investment or establishing a company to run your business are all good reasons to review your Will. Your relationship status, especially getting married or divorced, can have a significant effect on your Will.
In Queensland, section 14 of the Succession Act 1981
(Qld) provides that Marriage automatically revokes a Will unless the Will was expressly made in contemplation of the marriage.
If the Will is made in contemplation of the marriage, the contemplation must be clear that at the time the Will was made the testator (will-maker) expected to marry a particular person and intended that the Will should not be revoked.
Divorce does not automatically revoke a Will
In Queensland section 15 of the Succession Act 1981 (Qld) sets out the effect that Divorce has on a Will.
Unless a contrary intention is shown in the Will, a testator’s divorce or the annulment of a testator’s marriage revokes the following:-
- Any beneficial interest the testator’s former spouse had under the Will is revoked;
- Any appointment the former spouse has as an executor, trustee, advisory trustee or guardian under the Will is revoked; and
- Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse is revoked.
The Will of the testator then takes effect as if the former spouse had died before the testator.
However, in Queensland, a testator’s divorce or the annulment of a testator’s marriage does not revoke—
- the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children; or
- the grant of a power of appointment exercisable by the testator’s former spouse only in favour of children of whom both the testator and the former spouse are parents.
Whether you are getting married or divorced you should obtain legal advice as close to the event as possible to discuss the legal implications and effects on your estate planning.