A change in circumstances with respect to your relationship can mean a need to change or update your Will. Most people are unaware that these changes in your relationship may impact the validity of your Will. This article will explore the effects of marriage and divorce on a will and help you understand the governing legislation with respect to Wills in New South Wales.

Listed below are some key terms and definitions to help you understand the terminology used in Wills:

  • Testator: A testator refers to the person who makes the Will to dispose of their property and manage any debts after their death.
  • Executor: An executor is designated by the testator to administer the Will according to the instructions set out in the Will.
  • Trustee: A trustee is responsible for managing property on behalf of another person or organization and as instructed by the terms of the Trust under the Will. A trustee has various roles and responsibilities under a Will.
  • Beneficial disposition: Refers to any gift or bequest of property under a Will, the creation by will of a power of appointment affecting property.

State Legislation and Marriage

In Australia each state/territory has its own legislation that governs the regulation of Wills. In New South Wales, the legislation that governs the effect of a marriage on a Will is the Succession Act 2006, in particular s 12. The legislation states that a Will is revoked by the marriage of a testator. There are, however, some exceptions to this rule. The following will not be revoked despite the marriage of a testator:

  • Any gift, devise, or bequest of property under a Will to the person to whom the testator is married at the time of their death.
  • If the testator appoints the executor, trustee, advisory trustee, or guardian of the person to whom the testator is married at the time of their death.
  • A Will made in the exercise of a power of appointment of the property would not pass to the executor, administrator or NSW trustee and Guardian.

A Will that is also made in the contemplation of marriage will not be revoked upon that marriage being finalised. Even if you do not state in the Will that the Will is made in the contemplation of marriage it will still continue to have an effect.

What will happen if your Will is invalidated by marriage?

A person whose Will has been considered revoked and therefore, invalid may be considered to have died intestate, meaning that they do not have a Will. The Succession Act 2006 Chapter 4 outlines the rules that apply when a person dies intestate. If a person’s Will is considered intestate the hierarchy of the distribution of property Will be as follows:

  • Where there is a spouse and child from the relationship the spouse will be entitled to the whole estate
  • Where there is a spouse and a child from a previous relationship the spouse will be entitled to certain benefits and half of the estate and the children whether from previous relationships or the spouse will be entitled to an equal share of the other half of the remaining estate. Stepchildren are not included in this distribution of the estate.
  • Where there is more than one spouse such as the deceased person was married and had a de facto spouse the spouses are entitled to equal shares of the estate.
  • Where the deceased has only children the estate will be divided in equal shares among the children. If the child of the deceased person has already died leaving children ie the grandchildren of the deceased then the grandchildren will be entitled to their parent’s share of the estate.
  • Where the deceased person has no spouse or children the parents of the deceased will be entitled to the estate.
  • Where the deceased person does not have a spouse, child, or parents the estate may go to their siblings or any half blood related siblings. Where a sibling of the deceased person has died, then the deceased person’s nieces or nephews will be entitled to their parents share of the estate.
  • Where the deceased person does not have a spouse, children, parents, or siblings the deceased person’s estate will go to their grandparents.
  • Where the deceased person does not have a spouse, children, parents, siblings, or grandparents the deceased persons full, and half-blood aunts and uncles are entitled to the estate.

State Legislation and Divorce

Under section 13 of the Succession Act 2006, a divorce may have an impact on the effect of a Will. The ultimate effect of a divorce on a Will in New South Wales is that the former spouse’s rights and benefits from the Will are revoked as if they died before the testator. The aspects that will be affected by the divorce include the former spouses’ beneficial disposition under the Will being revoked, the appointment of the former spouse as an executor, trustee, advisory trustee, or guardian being revoked and a grant being made by the will of a power of appointment exercisable or in favor of the testator’s former spouse.

A Will may express contrary intention meaning that the Will may expressly outline that the former spouse shall continue to receive part of the estate under the Will. There are also circumstances where exceptions to the rules set out above apply such as where the testator’s former spouse was appointed as trustee left to beneficiaries that include the former spouse’s children or where the Will grants a power of appointment exercisable by the testator’s former spouse exclusively in favor of the children of whom both the testator and the former spouse are parents.

It is important to consult with a legal practitioner when drafting a Will to account for any changes in relationships whether the changes are current or whether they may occur in the future. The effect of not considering this when drafting a Will may mean that the intention of your Will may not be fulfilled in the future.

Call us on 1300 559 888 for a complimentary consultation to discuss how we can assist you with all aspects of estate planning, contesting and defending a Will; making or defending a family law claim, including assisting you in ending the dispute, where possible, by mediation and/or vigorously advocating your rights in Court.