Marriage, divorce and separation are all events which require
you to change your Will.
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.
In New South Wales, recent changes to intestacy laws, which deal
with dying without a Will, now mean that on your death your spouse
is entitled to the whole of your Estate. This is the case even if
you have children with your surviving spouse. If it is not your
intention that your entire Estate passes to your spouse on your
death, you must have a Will in place. (For more information on the
changes to intestacy laws in NSW, please see our earlier article,
Dying without a will.)
These same intestacy laws also deal with how your Estate is to
be divided when there are children from a previous relationship.
These distribution laws are very complex and can easily be avoided
by having a Will in place.
Unlike marriage, divorce does not automatically invalidate a
Will. Consequently, when a person divorces they should update their
A divorce only revokes or cancels any gift to a former
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 the former
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.
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 so promptly upon
marriage, divorce and separation.
Swaab Attorneys was the highest ranking law firm and the
13th best place to work in Australia in the 2010 Business Review
Weekly Best Places to Work Awards. The firm was a finalist in the
2010 BRW Client Choice Awards for client service and was named the
winner in the 2009 Australasian Legal Business Employer of Choice
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).