If you’ve recently been married, getting married, or separating, this article will help clear up what you need to know regarding your Estate Planning.

The Effect of Marriage on a Will:

Prior to the Mid-19th century there was a common law principal that getting Married would revoke a Will and now this common law principle has been incorporated in section 12 of the Succession Act 2006 NSW.  The Act provides, that a Will is revoked by the Will maker getting married except:

·         If the Will maker leaves a gift, benefit or makes an appointment to their spouse, or

·         If the Will maker makes a Will in the contemplation of an upcoming Marriage however in this case, the Will maker may further state that the Will is not conditional on the Marriage taking place.

What this means to you, if you have recently gotten married, or you are getting married soon, you should consider making a new Will to include your new spouse or future spouse.

The Effect of Divorce on a Will:

A Divorce revokes all gifts, benefits and appointments to the Will maker’s former spouse. However, a Will maker’s divorce does not revoke the appointment of their former spouse as a Trustee of property where the beneficiaries of the Trust include the children of the former spouse.  

It’s also worth noting that the Divorce of the Will maker from their former Spouse does not affect the ability of the former Will maker’s spouse to make a claim against the Will makers Estate. Divorce will also not affect the Will maker’s obligation to repay a debt or liability to the Will maker’s former spouse.

Divorce in this sense basically means, an Order from the Family Court dissolving the marriage. However, it is important to remember that a couple need to be separated for at least 12 months before they can apply to the Court for a Divorce and that a Divorce only becomes effective one month after the Court grants a Divorce Order.

Therefore, if you are seriously contemplating separation from your spouse and making an application for Divorce, it is important to give consideration to amending your Will after separation.

As always, the answers provided are for your general information only and we ask you to call our office on 1800 650 656 to obtain detailed legal advice for your individual situation.

Peter McManus | Wills and Estate Planning Solicitor