Apr 4

What is the effect of marriage and divorce on a Will?

Tags:

It is often that that a marriage or a divorce automatically revokes a will.  Is it so?

Marriage

Section 13 of the current Victorian Wills legislation  deals with the effect of marriage on a will.

Marriage revokes a will unless the will was made in contemplation of that particular marriage. The contemplation need not be expressed in the will, but it will generally be easier to establish if it is.

Those who make wills while in a de facto relationship may not intend to marry when the will is executed but may nonetheless do so later. We make sure that our wills for spouses provide that it can be made in contemplation of marriage, so as to avoid an unintentional revocation if the testator (will maker) and their de facto partner subsequently marry. It also provides that the will is not void if the marriage does not take place.

Divorce or annulment

Section 14 of the current act  deals with the effect on a will of divorce – which includes a nullity or annulment of marriage.

Divorce does not revoke a will. However, unless a contrary intention is expressed in the will, divorce revokes any gifts to the former spouse and the asset passes as if the spouse had predeceased the testator.

Any appointment of the former spouse as executor or trustee is also revoked, however any appointments of the former spouse as a trustee of property left to beneficiaries that include the former spouse’s children, or any powers of appointment exercisable by the former spouse in favour of the children of the former spouse and the testator, are not revoked.

As we can see, like in many other instances,  the answer can be  yes but also no, depending on the circumstances.