When you get married in Australia, your will becomes void. Many Australians don’t know that when they enter into wedded bliss, they have to write a new will because an existing one will not matter anymore. Divorce can also revoke your will; however, the rules for how it will affect your will depends on the state and territory you reside in. With this in mind, here is some advice from Streeterlaw, an Australian law firm that provides contested wills lawyers in Sydney. Take a look below.
1. The difference between a contested and uncontested divorce
Contested and uncontested divorce is different. A contested divorce involves spouses who cannot agree about all the major issues to conclusively terminate their marriage. An uncontested divorce, on the other hand, occurs when the couple agrees on all key issues required to effectively terminate their marriage and leave nothing of consequence that’s unresolved or disputed.
2. Serving as an executor after divorce
When it comes to divorce and wills, the impact depends on where you live in Australia. Some territories and states declare a will void due to divorce while others don’t. Divorce often revokes provisions in favour of an ex-spouse. Once the divorce has been finalised, your ex-spouse will stop serving as an executor even if they are named as one. Instead, the alternate executor would be the one to serve. If the will did not name an alternate executor, then the probate court will have to appoint someone. This means that your ex will not inherit your property regardless of what the will states, except in the following situations:
- If you decide to re-publish the will after divorce is finalised and you don’t change the terms of your will to disinherit your spouse or change the appointment of the person who should become the executor. All the provisions of your will that give your spouse property or power will then remain in effect.
- Any grants of power given to your ex that is exercisable in favour of your children will remain in effect after a divorce.
- Provisions of the will that name your ex as a trustee of assets and property left for your kids or your spouse’s kids will remain in effect. Unless you change the will and specify otherwise, your spouse will still be the trustee.
3. Pending divorce
In most states and territories, if death occurs while the couple is married but seeking a divorce, the gift given to the soon-to-be-ex-spouse will still be valid even, even if that is not what the person who died would have wanted. If your marriage ended in divorce, but you decide to remarry each other, then the old will becomes valid again.
4. Legal separation and your will
Wills for separated spouses are not affected. If a person dies while they are separated from their spouse or their divorce is pending, their soon-to-be-ex-spouse can still act as the executor of their estate if it’s stated in the will. If you left assets or property to your spouse, they will inherit them if you were separated. You will have to leave then the assets and property that you worked to acquire.
Since a marriage separation doesn’t affect your will, it’s important to make changes to the will while your divorce is still pending. A lawyer can help you create another will that specifies your wishes.
A will is designed to set forth your wishes about the distribution of your property when you are gone. Updating or changing it when you are going through a divorce is important. This legal document ensures that your property doesn’t unintentionally go to your former spouse when you die.
Leave a Reply