29/11/2012

How a person’s marriage or divorce affects their current Will is specified by legislation.

Some years ago Ted divorced Vera, his wife of 28 years with whom he has two adult children.  He now plans to marry Ellen who has no children. He wants to know how his divorce and forthcoming marriage affects the Will he made many years ago appointing Vera as his executor and sole beneficiary of the ‘rest and residue’ of his estate.

Looking first at his divorce from Vera, Ted’s Will is not revoked under succession law in all States except WA, but the divorce cancels certain provisions in the Will in favour of his former spouse if the divorce occurs after the testator has made their Will. In WA, Ted’s whole Will would be revoked.

For example, Section 13 of the NSW Succession Act 2006 states that any gifts to a former spouse are revoked by divorce, and that divorce revokes the former spouse’s appointment as executor, trustee or guardian in the Will.

However, these provisions are not revoked if a contrary intention appears in the Will, that is, if the Will specifically states otherwise.  As Ted made his Will some time ago, it contains no such contrary intentions, so Vera’s appointment as his executor is revoked by their divorce and she would not be entitled to any gift from his estate.

Also, a divorce does not revoke an appointment of a former spouse as trustee of property left on trust for beneficiaries that include the children of the former spouse or children of both the testator and the former spouse.  If Ted had set up any testamentary trusts for his children in his Will, Vera would still have been the trustees of those trusts.  

If Ted were to pass away at this time before he has a domestic relationship with or marries Ellen, Vera’s entitlement has lapsed due to the divorce and his two adult children would inherit his estate.

With regard to his forthcoming marriage to Ellen, Section 12 of the Succession Act 2006 NSW, for example, states that any existing Will is revoked when the testator marries.  That is, once Ted marries Ellen he would die intestate as if he had not made a Will at all.

Similar legislation exists in other States whereby a Will is generally revoked by a subsequent marriage unless the Will is made in contemplation of marriage.

If Ted were to die after marrying Ellen but before making another Will, the intestacy rules would apply so that in NSW Ellen would inherit Ted’s personal effects, an amount equal to the statutory legacy being $350,000 adjusted for CPI, and one half of the remainder of the estate. Ted’s children would only be entitled to any remainder of the estate equally between them.

If this is not what Ted wants to happen, namely, if he wants to leave his estate to his children as Ellen has her own substantial assets, he should make a new Will, 'pronto'!

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.