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Effect of Divorce and Separation on a Will

  • By:Sara Arnold

Having an up-to-date and valid will is an essential part of caring for your family. To find out more about how separation and divorce can affect your Will read on.

It is common for spouses to appoint each other as executor or executrix of each other’s Will and/or as one of the main beneficiaries of their estate. However, should circumstances change and parties go through a separation and/or divorce, parts of the Will can be nullified.

The laws relating to Wills and intestacy are State-based laws. In New South Wales, a divorce order does not generally revoke the whole Will of the testator, however, a divorce order will usually invalidate the parts of the will that operate in favour of the former spouse.

Accordingly, once a divorce order is made by a Court of competent jurisdiction, any beneficial gifts made by a party to their former spouse may be revoked. Additionally, any appointment of a former spouse as an executor, trustee or appointee usually also becomes invalid.

Although not ideal, it is prudent for parties who are separated to immediately consider updating their Wills.

In New South Wales, parties must be separated for a 12-month period before the Family Court will finalise their divorce. In New South Wales, separation has no impact on a Will, which means that any assets bequeathed to a former partner would still be distributed to them if a party dies prior to the divorce order being made.

The issue is further complicated in situations where a party dies during the period of separation, prior to a divorce order being made and where the deceased has children from a former relationship. This is the case because if a person passes away before their divorce is finalised, their former spouse will be entitled to a portion of their estate, leaving their children having no option but to contest the Will if they wish to enforce their rights.

Essentially, it is important to remember that divorce may invalidate certain provisions of a Will, whereas mere separation will generally have no effect over a Will. Should certain parts of a Will become invalid, this may lead to a failure to dispose of all the assets in the Estate (which is called partial intestacy) any may result in addition heartache and unnecessary expense to those left behind.

In any event, it is prudent that once partners separate from each other that they update their Will to reflect their new circumstances, especially given that most people remain separated for some time before they are divorced.

The advice above is only intended as general advice. If you wish to find out more about your particular circumstances and obtain tailored legal advice, contact us on (02) 9653 9466.

Posted in: Family Law