Australia: Marriage, divorce and estate planning

Last Updated: 13 September 2017
Article by Simon Creek

Following the commencement or breakdown of a marriage, many people re-evaluate who should benefit from their estate in the event of their death. For this reason, it is often necessary to speak to a lawyer following these events to ensure that your interests are protected, and that your intended beneficiaries will benefit from your estate.

Marriage and Wills

Under section 14 of the Wills Act 1970 (WA) (the Act), a testator's Will is revoked by their subsequent marriage unless the Will is made in contemplation of marriage. To ensure the Court will interpret the Will as being made in contemplation of marriage it is necessary to include a contemplation of marriage clause. The law also requires you to name your partner in the clause, and best practice is to state that the Will is to remain valid even if the marriage does not take place. This places the onus on the Willmaker to revoke their Will should the relationship end. The Court has previously interpreted clauses without this inclusion to mean that you did not want your spouse to benefit under the Will if the marriage was delayed, even if both parties wished to remain in a de facto relationship.

Although it may be tempting to delay writing a Will until you are married to avoid the need for such a clause, it is important to consider the consequences of not having a Will and dying before your planned nuptials. If a previous Will is in place this will take effect, and if your partner is not named they would need to challenge the Will to be entitled to any of your estate. If you did not previously have a Will you would die intestate and the estate would be administered in accordance with the Administration Act 1903 (WA).

Divorce and Wills

Under section 14A of the Act a testator's Will is revoked by their subsequent divorce unless the Will is made in contemplation of divorce. Similar rules apply to the contemplation of marriage clauses mentioned above. If you are separated but your divorce is not yet finalised, it is important to execute a new Will including this clause so your Will is not revoked once the divorce is finalised.

If you intend to wait for your divorce to be finalised before executing a new Will, it is important to consider the consequences of dying in the interim. If you are separated and have not executed a new Will your previous Will will still be valid and may gift your estate to your ex-spouse. If your divorce has been finalised but you die before executing a new Will you will die intestate. For these reasons, we recommend that you seek legal advice when you become separated to execute a new Will, and to ensure your estate passes to your intended beneficiaries.

Consequences of a Revocation

If your Will is revoked by marriage or divorce and you have not made a new Will before you die your estate will be distributed in accordance with the Administration Act 1903 (WA). For more information on the consequences of dying 'intestate' please refer to our article titled 'What happens to my estate if I die without a Will?'.

It is important to have your Will reviewed with every major life event, but particularly when you get married or divorced, to ensure the document still fulfils your intentions.

Divorce and Enduring Powers of Attorney

Although divorce will revoke your Will it does not revoke an Enduring Power of Attorney (EPA). As an EPA allows the named attorney to make financial decisions on your behalf, and to make these decisions for you should you lose capacity, it is important you revoke the document following separation should you no longer wish for your ex-spouse to make these decisions.

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.

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