Does Divorce Revoke a Will?

A Will is a legal document which sets out how you as the Will-maker (“the Testator”) want your assets to be dealt with after you die. Revocation of your Will refers to when you cancel your Will out, so it is no longer considered your last Will and the terms of your Will are no longer legally binding. The simplest way to revoke a Will is by making a new Will.

So what effect does divorce have on your Will, if any?

This is dealt with by Section 13 of the Succession Act 2006 (NSW), which provides that divorce of the Testator does not revoke a Will. Divorce will only revoke certain clauses of a Will, such as the appointment of a former spouse as the Executor and Trustee of the Will, and any beneficial disposition (i.e. gift) to a former spouse.

Accordingly, if a Will contained default gifts to children of the marriage, then after the divorce those default gifts would become the gifts to be given effect under the Will. The Will would still be able to be submitted to the Court for a Grant of Probate by any alternative Executor and Trustee of the Will or propounded for a Grant of Letters of Administration by, for example, one of the children as an Administrator.

This is dissimilar to the effect of marriage on a Will. Under section 12 of the Act, the marriage of the Testator will revoke a Will, except in certain circumstances. One general exception is where a Will includes a clause which states that the Will is made in contemplation of a particular marriage or personal relationship.

You should review and consider your Will whenever your circumstances change, as the terms of your Will may no longer reflect what you want to happen. It is recommended that you seek advice from a Solicitor to prepare your Will. If you would like to make or amend your Will, please do not hesitate to contact our Estate Planning Solicitors at Brazel Moore Lawyers on (02) 4324 7699.

 

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