Life changes and wills

Date: Mar 12, 2013
Document Type: Article

Did you know that your will actually becomes invalid once you marry? Only in special circumstances does its validity continue after you marry.

It's important to think of what changes in life may affect your will. As life changes so may your wishes for your estate - including who you wish to be your beneficiaries.

Births and deaths of those close to you may alter who you want as the beneficiaries of your estate, and thus your will may need to be updated by an experienced wills and estates lawyer.

An person should always think about proper
estate planning, but should you decide to draw up a will e.g. when you are in your 20s and not married, the intended beneficiaries could change if you were to tie the knot and/or have children later.

It's important to either expect what will happen eventually or update your will when these changes take place. An experienced lawyer can assist.

Your circumstances may also change when there is a death in the family, or if you go into business or take on a financial risk, move overseas, make a new investment etc - at which time you should review your will to ensure it reflects your wishes about who you want as a beneficiaries or who you would like as your power of attorney, or who should make important medical decisions on your behalf if you are unable to.

Divorce is also a major life change.  In NSW the Succession Act has some complex rules about how divorce effects wills: see section 13 which provides:

13 What is the effect of divorce or an annulment on a will?

 (1) The divorce of a testator or annulment of his or her marriage revokes:

(a)       a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and

(b)       an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and

(c)        a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.

(2) Subsection (1) does not apply if a contrary intention appears in the will.

(3) The divorce of a testator or the annulment of his or her marriage does not revoke:

(a)        the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children, or

(b)        the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents.

(4) If a disposition, appointment or grant is revoked by this section, the will takes effect in respect of the revocation as if the testator’s former spouse had died before the testator.

(5) Nothing in this section affects:

(a)        any right of the former spouse of a testator to make any application under Chapter 3 of this Act, or

(b)        any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse.

(6) In this section:
"annulment" , in relation to a testator, means:

(a)        the annulment of the testator’s marriage by the Family Court of Australia, or

(b)        the annulment of the testator’s marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.


"divorce" means the ending of a marriage by:

(a)        a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or

(b)        a decree of nullity in respect of the marriage by the Family Court of Australia, or

(c)        the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 of the Commonwealth.

You can see from the above that divorce can leave your affairs in a mess if you do not execute a new will, or at least consult with a lawyer to ensure that your old will still gives effect to your wishes now your circumstances have changed. Failure to review your will could lead to an estate dispute e.g. between your ex-spouse and those who you wish to benefit. A wills and estates lawyer will be able to advise you what to do.

To talk to an experienced wills and estates lawyer about life changes affecting your estate planning call Dominic Wilson on 8268 4000.

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