Marriage, Separation, Divorce and Wills: The impact of major relationship events on your Will


HomeNewsMarriage, Separation, Divorce and Wills: The impact of major relationship events on your Will

Marriage, Separation, Divorce and Wills: The impact of major relationship events on your Will

In Queensland, marriage, separation and divorce can each impact the validity of your Will in different ways. As family law practitioners, we are frequently required to consider these impacts given that often, a person’s circumstances change between the time of making a Will, and the time of death.

So how do each of these events impact your Will under Queensland succession law?

Marriage and your Will

Most people are surprised to learn that unless a Will executed prior to a marriage specifically states that the Will has been made “in contemplation of marriage”, a marriage may automatically revoke a Will.

In some cases, the revocation suits the intentions of the testator, particularly if the testator made a Will early in life, went on to marry, but forgot to update their Will to benefit their surviving spouse. In the absence of an updated Will, the estate is likely to be left to the surviving spouse by virtue of their marriage.

However, in other cases, such as a second marriage later in life where the testator intended for their estate to benefit their adult children rather than their new spouse, the revocation of an old Will preserving assets for adult children can create significant issues after death and lead to an outcome not intended by the testator.

Wills should always be updated in contemplation of, or immediately around a testator’s marriage.

Separation and your Will

At separation, it is critical to ensure that you update your Will to set out your testamentary intentions in light of the breakdown of your relationship. At separation, many people may decide that they no longer wish for their estranged spouse to benefit from their Estate, but if they remain married, a Will made during the marriage will stand. Equally, if the testator died intestate (without a Will), but had a spouse (albeit from whom they had separated), the estate is likely to be paid to their estranged spouse.

The period between separation and divorce is therefore a perilous time for those with old Wills – as it is likely that in the absence of an updated Will, earlier dispositions to estranged spouses will stand.

A separate situation arises at separation for de facto couples (i.e. those couples who did not marry). In June of this year, an Amendment Act [the Court and Civil Legislation Amendment Act 2017 (QLD) (Amendment Act)] was passed, inserting a provision into the Succession Act QLD 1981 which now means that when a de facto relationship ends, most provisions in the testator’s Will in favour of their former de facto partner such as disposition or appointment as executor will be revoked. This type of revocation is similar to what applies when married couples divorce, but is enlivened at an earlier point for de facto testators (i.e. at separation).

We always recommend that once a decision has been made to separate, you should take the time to update your Will to ensure that you estate is administered pursuant to your wishes.

Divorce and your Will

Provided there is no provision in a Will specifically stating otherwise, for those who separate and go on to divorce, a divorce Order will automatically revoke any part of the Will in favour of former spouses, subject to some exceptions. In the same vein, any paragraph of a Will (which pre-dates a divorce) that appoints a former spouse as Executor or Guardian will likewise be revoked upon divorce.

One exception to the automatic revocation of provisions at the point of divorce occurs when a former spouse has been appointed Trustee of property left on Trust for beneficiaries. For example, if you make a Will during your marriage, and you appoint your spouse to manage a Trust for the benefit of your children until they turn of age, the appointment is unlikely to be displaced by the divorce.

Again, divorce is an important time to update your Will. More often than not, even though divorce revokes benefits to former spouses, the outcome can lead to the estate being administered in a way not intended by the testator. We have seen cases where as a result of the automatic revocation, large estates have been left to kind neighbours or charities, because once the former spouse was removed from the equation, they were not replaced with others close to the testator, and the remaining parts of the Will were administered as per the testator’s Will.

Informal Wills

We are often asked about the validity of informal wills, such as those scribbled on a napkin or executed without the presence of witnesses.

Generally speaking, a Will is not valid unless it is made and executed in accordance with Section 10 of the Succession Act Qld 1981. This includes the Will being made in writing, signed by the person making the Will, dated and witnessed by two witnesses. In terms of appropriate witnesses, it is not necessary to have a lawyer or Justice of the Peace act as witnesses, but if a friend, colleague or family member is witnessing the Will, it is good practice to ensure that the Will is not witnessed by a beneficiary.

If the Will does not comply with these formalities, the Will may not be valid, and in this case, the deceased person will be considered to have died intestate.

Helpfully, Section 18 of the Succession Act QLD 1981 does permit a Court to rule a Will to be valid, even where the requirements of a Will are not met. However, the circumstances which must exist for a Court to make a ruling of this nature are not easily satisfied, such that if an intention is formed to make a Will, it ought to be drafted and executed properly in order to ensure its validity.

In closing, it is prudent to ensure that your Will is revisited every couple of years, but at the very least, proximate to any changes to your relationship or family unit. If in doubt, we recommend consulting with an experienced solicitor to ensure your Will is valid and adequately reflects your testamentary wishes.