Marriage, divorce and your Will

Posted on May 23rd, 2017

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It is not uncommon for an individual to overlook reviewing his or her Will at the time of marriage, divorce or separation. Section 12(1) of the Succession Act provides that a Will is revoked by the marriage of the Will maker. However, if a Will is made in contemplation of marriage then the subsequent marriage of the Will maker does not revoke the Will.  

However, if an individual makes a Will in favour of his or her spouse and then marries that person, the Succession Act provides that the disposition to the person to whom the Will maker is married at the time of his or her death will not fail (i.e. the surviving spouse can receive his or her share under the terms of the Will). 

On the other hand, the divorce of a Will maker or the annulment of his or her marriage revokes any disposition to the Will maker’s former spouse made by a Will. Unlike marriage, divorce or annulment of a marriage does not revoke the Wills of the parties to that marriage. The Will stands however any entitlement under the terms of the Will in favour of the former spouse fails.

When a couple part company they should review their Wills as soon as convenient. It is often overlooked. It has happened that after separating, a property settlement has taken place however there has been no divorce. In these circumstances, the Will of each party to the relationship remains effective until a new Will is made. If the couple do not divorce and one of them dies then the Will of the deceased person may still be in favour of the estranged spouse. If the deceased person has since entered into a de facto relationship then he or she has no right to the estate (or part of it) unless they are successful in making a claim in the estate by contesting the Will under the provisions of the Succession Act. Every adult person is wise to review his or her Will at least every five (5) years and certainly in the event of marriage, divorce or separation.

 

Robert Lindsay, Consultant at Mullane & Lindsay Solicitors, NewcastleRobert Lindsay is a Consultant at Mullane & Lindsay Solicitors and practises extensively in Wills and estate planning, commercial dispute resolution,  and commercial and property transactions.  If you require any assistance in these areas please contact Robert Lindsay to arrange a consultation or contact our Newcastle or Tea Gardens office. 

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