Understanding the impact of the different stages of personal relationships on your Will is vital to ensuring that your intentions and wishes are carried out in dealing with your assets after your death. Tying the knot or splitting up with your partner may have a significant effect on your Will including who is entitled to inherit your assets after your death and who is appointed to manage such assets, and even more so if you do not leave a Will and intestacy laws apply.
MARRIAGE
A Will is revoked by the marriage of the testator unless the Will is expressly made in contemplation of marriage. Certain provisions of the Will are not revoked by the marriage of the testator if the Will is not made in contemplation of marriage including but not limited to:-
- A disposition to the person to whom the testator is married at the date of death
- An appointment as executor, trustee, advisory trustee, or guardian of the person to whom the testator is married at the date of death.
Any beneficial disposition made to any person other than the person whom the testator marries will be revoked and this may be problematic for blended families where dispositions were made to children from a previous marriage.
DIVORCE & SEPARATION
Divorce will not revoke the whole Will but revokes certain provisions in the Will being:
- A beneficial disposition to the testator’s former spouse, and
- An appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian, and
- A grant of a power of appointment exercisable by, or in favour of, the testator’s former spouse,
Unless a contrary intention is expressed in the Will. The revocation of such disposition, appointment, or grant takes effect as if the testator’s former spouse had died before the testator.
There is a legal distinction between separation and divorce. The Succession Act 2006 (NSW) (which deals with Wills) defines “divorce” to mean the ending of a marriage by a divorce order taking effect under the Family Law Act 1975 (Cth). According to the Family Law Act, parties must be separated for at least one year prior to filing for divorce and the divorce order takes effect at the expiration of one month from the making of the order. Separation does not revoke any provisions of the Will and the spouse of the testator will be entitled to inherit under the testator’s Will or be appointed as executor if specified.
DE FACTO
Changes in de facto relationships do not automatically impact an existing Will in New South Wales. Generally, a gift to a former de facto partner named in the Will is valid even after the relationship has ended. Should the Will not be updated to leave any entitlement to a de facto partner then such person may need to make a family provision claim (if an eligible person) against the deceased estate and this may involve commencing proceedings in the Supreme Court of NSW. However, if there is no Will, intestacy laws provide that a de facto partner of the intestate immediately before the intestate’s death is a spouse of the intestate.
It is critical to review your Will when there is a change in your personal relationship to prevent the distribution of your assets following your death to an unintended beneficiary.
If you have any Will or deceased estate queries, contact our team online, at (02) 9307 8900 or at [email protected].
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.
